Babu s/o Balakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **CRL.A.No.521 OF 2005** **AGAINST THE JUDGMENT IN SC 33/2000 DATED 07-03-2005 OF THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC)COURT-1, KOLLAM** ## **APPELLANT/ACCUSED:** **BABU S/O BALAKRISHNAN, PRASANTHI BHAVANIL, NEAR PATTATHIKKAVU TEMPLE, VADAKKEVILACHERI, KOLLAM DISTRICT.** **BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR** ## **RESPONDENTS/COMPLAINANTS:** **1 STATE OF KERALA REP.BY THE DIRECTOR OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM.** **2 THE SUB INSPECTOR OF POLICE EAST POLICE STATION, KOLLAM.** ## **BY SR.PP.SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.521 OF 2005 2 ## **JUDGMENT** ## **Dated this the 3rd day of June, 2020** … **The above appeal is filed by the accused in Sessions Case No.33 of 2000 on the file of the Additional District and Sessions (Adhoc) Court-1, Kollam. The case was charge sheeted by the Sub Inspector of Police, East Police Station, Kollam against the accused alleging offence punishable under Section 55(a) of the Abkari Act (hereinafter 'the Act').** **2. The Prosecution case is that, on 04.11.1998 at about 12.30 p.m., the accused was found in possession for sale of about 500 ml. Arrack in a white cannas of 10 litres capacity, on the eastern side of T.S. No.34 near Vendar Junction in Thekkevila cheri of Mundakkal Village and hence, the accused committed the offence. To substantiate the case, the prosecution examined PW1 to PW4.** CRL.APPEAL NO.521 OF 2005 3 **Exhibits P1 to P6 are the exhibits marked on the** **side of prosecution. Exhibits D1, D1(a) and D2 are the exhibits marked on the side of defence. The accused himself examined as DW1. MO1 and MO2 are the material objects. On going through the evidences and documents, the lower court found that, the accused committed the offence under Section 55(a) of the Act and he is sentenced to under go Rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/-. Aggrieved by the conviction and sentence, this appeal is filed.** **3. Heard the learned counsel for the appellant and the learned Public Prosecutor.** **4. The learned counsel for the appellant submitted that, even if the entire allegations are accepted, no offence under Section 55(a) of the Act is made out in this case. The counsel submitted that, as per the admitted case, there is nothing to show that the sample taken are sealed from the** CRL.APPEAL NO.521 OF 2005 4 **spot. The contemporaneous records are silent about the same. Moreover, the counsel also submitted that, even though the property was seized on 04.11.1998, it was produced before the Court only on 26.11.1998.** **5. The learned Public Prosecutor supported the judgment of the lower Court. According to the Public Prosecutor, based on the oral and documentary evidences, the trial court convicted and sentenced the accused and there is nothing to interfere with the order of conviction and sentence imposed by the lower court.** **6. The point to be decided in this case is whether the accused committed the offence under Section 55(a) of the Act and whether the conviction and sentence imposed by the lower court, is justified in the light of the facts and** **circumstances of the case.** **7. There is an important omission in the evidence of prosecution witness relates to the** CRL.APPEAL NO.521 OF 2005 5 **sealing of MO1 cannas. Exhibit P1 and the statement of witnesses recorded under Section 161 of the Code of Criminal Procedure (hereinafter Cr.PC) are silent on these facts. PW3 and PW4 asserted that, the contraband articles were sealed from the place of occurrence. But, MO1 does not bear any seal. Exhibit P4 property list does not describe MO1 in a sealed cover. After finding that, it is an important omission, the learned Sessions Judge observed that it was not so material to affect the prosecution case adversely.** **8. It is settled position that, the prosecution has to prove all the links starting from the seizure of the contraband article till it reaches in the hands of Analyst. This Court in Madhavan v. State of Kerala [2019 (4) KLT 18], this Court held like this:** _**“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of**_ CRL.APPEAL NO.521 OF 2005 6 _**the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner.**_ _**20. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related (See Vijay Pandey v. State of Uttar Pradesh (2019(3) KLT OnLine 3028 (SC) = 2019 (10) SCALE 129).”**_ ## **In Gireesh v. State of Kerala [2019 (4) KLT 79] this Court observed like this:** _**“15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reaches the hands of the chemical examiner.**_ _**16. The aforesaid view has been taken by this**_ CRL.APPEAL NO.521 OF 2005 7 _**Court in a catena of decisions (See Ravi v. State of Kerala (2011(3) KLT 353),Joseph v. State of Kerala (2009(3) KLT SN 28 (C.No.30) = 2009 (4) KHC 537), Sathi v. State of Kerala (2007(1) KLT SN 57 (C.No.82) = 2007(1) KHC 778) and Sasidharan v. State of Kerala (2007(1) KLT 720). Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Dault Ram (1980 KLT OnLine 1025 (SC) = AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC) = AIR 1994 SC 117).**_ _**17. The principles mentioned above get support also from the very recent decision of the Supreme Court in Vijay Pandey v. State of Uttar Pradesh : 2019 (3) KLT OnLine 3028 (SC) = 2019 (10) SCALE 129) (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019), wherein it has been held as follows:**_ _**“The failure of the prosecution in the present case to relate the seizure sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be corelated.” (emphasis supplied)**_ **If there is no seal in the contraband articles** CRL.APPEAL NO.521 OF 2005 8 **recovered, it cannot be said that the seized article reached in the hands of the Analyst. Therefore, on this simple reason itself, I think, the accused is entitled the benefit of doubt.** **9. Moreover, the contraband articles were seized in this case on 04.11.1998. It was produced before the Court on 26.11.1998. There is, absolutely, no convincing explanation from the side of the prosecution regarding the delay in producing the articles. This Court in** _**Sukumaran v. State of – Kerala [2019 (3) KLT 920, Ravi v. State S.I. of Police, Meppadi [2018(5) KHC 352, Vikraman v. State of Kerala [2018 (1) KLT 822]**_ **observed that, delay in producing the articles is to be explained by the prosecution and if there is no explanation, the benefit of doubt will go to the accused. In this case, there is no explanation for the delay in producing the articles before the Court** **10. Hence, in the light of the fact that there is long unexplained delay in producing the articles** CRL.APPEAL NO.521 OF 2005 9 **before the Court and since the contemporaneous records will not show that the contraband articles are sealed after seizure from the place of occurrence, I think, the accused is entitled the benefit of doubt.** **Hence,the Crl.Appeal is allowed. The conviction and sentence imposed on the appellant/accused as per the judgment dated 07.03.2005 in Sessions Case No.33 of 2000 by the Additional District and Sessions (Ad hoc) Court-1, Kollam, is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**