Athikka Babu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 CRL.A NO. 2189 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 06.08.2008 IN SC 677/2003 OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY ``` ## **`APPELLANT/ACCUSED:`** ``` ATHIKKA BABU S/O. KUNHIRAMAN, VADAKKEYIL HOUSE, SIVAPURAM, MALOOR. ``` ``` BY ADV C.P.PEETHAMBARAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.2189/2008 2 ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2189 of 2008 --------------------------------------------- Dated this the 30[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 06.08.2008, passed by the Additional Sessions Court (Adhoc-III), Thalassery in Sessions Case No.677/2003, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.04.2002 at 6.00 p.m., the appellant/accused was found in possession of 5 litres of illicit arrack at Kavinmoola in Sivapuram amsom, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to Crl.A.No.2189/2008 3 the charge, and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 and 2 and proved Exts. P1 to P8 and MO1. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. C.P.Peethambaran, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (1) The delay in the production of the articles, including the sample, before the Court has not been satisfactorily explained by the prosecution. Crl.A.No.2189/2008 4 - (2) The prosecution failed to establish the arrest of the accused from the place of occurrence. (3) The prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 29.04.2002. Ext.P5 property list shows that the material objects were produced before the Court only on 17.05.2002. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. 9. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: - “8. We, therefore, answer the reference as follows: 1.It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” Crl.A.No.2189/2008 5 In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 11. The defence disputed the arrest of the accused. The learned counsel relied on the presence of Crime No. in Ext.P1 arrest memo to contend that the arrest of the accused at the spot is doubtful. Ext.P1 contains the number of Crime (Crime No.73/2002) registered against the accused. 12. While dealing with a similar fact situation, this Court in ## **Santhosh v. State of Kerala** [2021 (5) KHC 214], held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to Crl.A.No.2189/2008 6 the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)].” 13. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P1 arrest memo, a doubt arises as to the manner in which arrest and seizure were effected. 14. The learned counsel for the appellant further contended that the prosecution has not succeeded in ensuring the genuineness of the contraband seized and produced before the Court and the sample forwarded to the laboratory. 15. Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer who had drawn the sample has not given evidence as to the nature of the seal used. Ext.P6 copy of the forwarding note does not contain the specimen of the seal affixed on the bottle containing the sample. There is nothing to show that the specimen of the seal stated to have been affixed on the sample was forwarded to the Chemical Examiner's laboratory to ascertain the genuineness of the sample. Crl.A.No.2189/2008 7 16. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the Court {Vide: **Bhaskaran K. v. State of Kerala and another** (2020 KHC 5296), **Achuthan v. State of Kerala** [2016(1) KLD 391], **Krishnadas v. State of Kerala** (2019 KHC 191)}. 17. There is absolutely no evidence to convince this Court that the prosecution had produced the specimen impression of the seal before the Court, and the same was provided to the Analyst for comparison. Therefore, no evidentiary value can be given to Ext.P8 Chemical Analysis Report. 18. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. Crl.A.No.2189/2008 8 19. It is well settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so, when the sample might have changed several hands before it reached the hands of the Chemical Examiner. {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 20. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. ## The Criminal appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK