Asokan K.P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** **CRL.A NO. 1437 OF 2007** **AGAINST THE JUDGMENT IN SC 648/2005 OF ADDITIONAL SESSIONS** **COURT (ADHOC)-II, KOZHIKODE,** ## **APPELLANT/ACCUSED:** **ASOKAN K.P., S/O. RAMAN NAIR, AGED 46 YEARS** **KUNDIYODEN PARAMBATH VEEDU, P.O. CHOOLOOR, POOLAKKODE VILLAGE, KOZHIKODE.** BY ADVS. THAMPAN THOMAS V.O.PHILOMINA ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** . ## **BY PUBLIC PROSECUTOR SRI.SANAL P.RAJ** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 1437 OF 2007 2 ## **JUDGMENT** This appeal has been preferred under Section 374(2) of the Code of Criminal Procedure (for short 'Cr.P.C.') against the judgment of conviction and sentence passed by the Additional Sessions Court (Adhoc-II), Kozhikode in S.C. No.648/2005 dated 10.7.2007. 2. The accused/appellant faced trial for an offence punishable under Sections 58 and 8(2) of the Abkari Act. The prosecution case in short is that on 12.1.2002 at 1 pm. the accused was found carrying 7 litres of illicit arrack in a can in his possession at the road in front of the house of one Gopalan @ Gopalakrishnan, Poolakkode Amsom, Choolur desom, Kozhikode Taluk in contravention of the Abkari Act and the Rules. 3. PW1, the Excise Inspector, Kunnamangalam is the detecting officer. He along with PW1, the Preventive Officer was conducting patrol duty on 12.1.2002 at 1 pm. When they reached Poolakkode amsom, Choolur desom they saw the accused coming CRL.A NO. 1437 OF 2007 3 with a can in his possession through the road in front of the house of one Gopalakrishnan (DW1). They intercepted the accused and the can filled with 7 litres of illicit arrack was seized. The accused was arrested at the spot. Ext.P1 is the arrest memo. Sample of 180 ml was drawn from the contents in the can. It was sealed and packed properly in the presence of the witnesses who were examined as PWs 3 and 4. Ext.P2 mahazar was prepared. Thereafter he took the accused along with the contraband article to the excise office and registered crime against the accused. Ext.P3 is the occurrence report. The accused was produced at the court on the same day. The seized contraband articles were produced before the court on 14.1.2002 as per Ext.P4 property list. The sample was sent for chemical analysis on 24.1.2002 as evident from Ext.P5 forwarding note. After chemical analysis the report was received, which was marked as Ext.P10. The report shows that the sample contained 31.63% by volume of Ethyl alcohol. PW6, the Excise Inspector, Kunnamangalam conducted investigation. After completing the investigation, he filed final report before the Magistrate. The learned Magistrate, after complying with the statutory formalities, committed the case for trial to the Court of Sessions. CRL.A NO. 1437 OF 2007 4 4. The accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Sections 58 and 8(2) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 7 and marked Exts.P1 to P11. MO1 was identified. On completing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances that were brought against him during evidence. DW1 and DW2 were examined on the side of the defence and Exts.D1 and D2 were marked. After trial, the court below found the accused guilty under Section 8(2) of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- in default to suffer simple imprisonment for a period of six months as per the impugned judgment. The said judgment is under challenge in this appeal. 6. I have heard Smt.Rajasree, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor. 7. The learned counsel for the appellant assailed the finding of guilt passed against the appellant contending that there is no CRL.A NO. 1437 OF 2007 5 acceptable legal evidence to prove the guilt of the accused other than the interested testimony of the official witnesses PWs 1 and 2. The counsel submitted that PWs 4 and 5, the two independent witnesses examined did not support the prosecution case. The counsel further submitted that there is a delay of two days in producing the contraband article before the court and further delay of eight days in sending the same for chemical analysis. The counsel also submitted that neither Ext.P2 seizure mahazar nor Ext.P4 property list does contain the specimen seal. 8. The learned Public Prosecutor, on the other hand, supported the findings and verdict of the court below and argued that necessary ingredients of Section 8 of the Abkari Act had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 9. The main contention put forward by the learned counsel for the appellant is about the delay in producing the contraband articles at the court below. It is settled that unexplained delay in producing the contraband article at the court is fatal to the prosecution case. A Division Bench of this Court in **Ravi v. State of Kerala** [2011(3)KLT 353] has held that even though law CRL.A NO. 1437 OF 2007 6 does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in **Ravi v. State of Kerala** [2018 (5) KHC 354] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in **Ramankutty v. Excise Inspector** [2013 (3) KHC 308]. Relying on the Division Bench's decision in **Ravi** (supra), recently, another Single Bench of this Court in **Anilkumar v. State of Kerala** (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal. The Apex Court in **State of Uttar Pradesh v. Hansraj @ Hansu** [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. CRL.A NO. 1437 OF 2007 7 10. Coming to the facts of the case the detection of the offence was on 12.1.2002. The accused was arrested on the spot. He was produced at the court on the same day. Still, the contraband article was produced only on 14.1.2002. Thus, there is two days delay. This delay has not been explained at all. No explanation has been given in the chief examination of PW1. In cross examination when questions were put, PW1 answered that when the accused was produced at the court, the seized properties were also sent. But the records would show that the contraband seized from the accused was produced at the court only on 14.1.2002. There was absolutely no evidence to show where and as to how and in what condition the contraband article was kept between 12.1.2002 and 14.1.2002. That apart, the contraband was sent for chemical analysis only on 22.1.2002. The sample seal was not seen affixed either in Ext.P2 seizure mahazar or in Ext.P4 property list. During trial, the sample seal also was not exhibited. In these circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the CRL.A NO. 1437 OF 2007 8 chemical examiner for analysis in a tamper proof condition. Hence, I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, the criminal appeal stands allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and accordingly he is acquitted. His bail bond is cancelled. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** ab