BABU, RAJESH S/O GOPALAN, KRISHNAN S/O KELAPPAN v. EDACHERY POLICE - STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 CRL.A NO. 2602 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT SC 1251/2006 OF SPECIAL COURT ``` ``` (NDPS ACT CASES), VADAKARA ``` ## **`APPELLANT/S:`** ``` 1BABU KUTTIPURATH HOUSE, ERAMALA AMSOM,, ADIYOOR DESOM, VADAKARA TALUK. 2RAJESH S/O.GOPALAN AGED 24 YEARS KUTTIPURATH HOUSE, ERAMALA AMSOM DESOM,, VADAKARA TALUK. 3KRISHNAN S/O.KELAPPAN AGED 46 YEARS THACHRATH HOUSE, ERAMALA AMSOM DESOM, VADAKARA TALUK. BY ADVS. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL ``` ## **`RESPONDENT/S:`** ``` EDACHERY POLICE - STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl A No.2602 of 2008 ..2.. ## **K. BABU, J ------------------------------------------------Crl Appeal No.2602 of 2008** ## **------------------------------------------------Dated this the 30[th] day of January, 2024** Aggrieved by the judgment dated 10.10.2008 passed by the Court of the Special Judge (NDPS Act Cases), Vatakara, in Sessions Case No.1251 of 2006, the accused have preferred this appeal. The appellants were convicted under Sections 55(a) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 25.01.2006 at 07.30 a.m., the accused were found engaged in manufacture of arrack at Eramala Amsom and in possession of 18 litres of arrack and other implements for manufacture of the said contraband in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report Crl A No.2602 of 2008 **==> picture [20 x 9] intentionally omitted <==** was submitted against the accused for the offences punishable under Sections 55(a) and 55(g) 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 charges were framed against them for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P13. 5. After the closure of evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were Crl A No.2602 of 2008 **==> picture [20 x 9] intentionally omitted <==** called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. Exts. D1 to D3 were marked on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(a) and 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.Pulikool Aboobacker, the learned counsel appearing for the appellants/accused and Sri. G.Sudheer., the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. Crl A No.2602 of 2008 **==> picture [20 x 9] intentionally omitted <==** 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i)The delay in the production of the properties including the sample has not been properly explained by the prosecution. (ii) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containg the sample. 9. The alleged seizure was effected on 25.01.2006. Ext.P3 property list shows that the properties including the sample were produced before the Court only on 27.01.2006. The prosecution has not offered any explanation for the delay in the production of properties including the sample. 10. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 353], on the question of delay in the production of Crl A No.2602 of 2008 ..6.. ## properties, a Division Bench of this Court held as follows: _“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.”_ _(Emphasis supplied)_ **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 explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties Crl A No.2602 of 2008 **==> picture [20 x 9] intentionally omitted <==** would lead to the conclusion that tampering with samples could not be ruled out. 12. Ext.P1 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 has not given evidence as to the nature of the seal used at the place of occurrence. 13. In _**Bhaskaran v. State of Kerala**_ (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 14. The sample remained in the custody of the property clerk and the Police official who delivered the sample in the laboratory. These officials were not examined by the prosecution to rule out the possibility of Crl A No.2602 of 2008 **==> picture [20 x 9] intentionally omitted <==** the sample being changed or tampered with. Nonexamination of these officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in _**State of Rajastan v. Daulat Ram**_ [AIR 1980 SC 1314). 14. In the instant case the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized from the place of occurrence. 15. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellants/saccused are therefore found not guilty of the offences punishable Crl A No.2602 of 2008 **==> picture [20 x 9] intentionally omitted <==** under Sections 55(a) and 55(g) of the Abkari Act. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused are acquitted of the offences alleged; - (iv) They are set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. Sd/- **K.BABU, JUDGE** kkj