Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943** **CRL.A NO. 795 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 721/2001 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA, KOLLAM APPELLANT/S:** **BABU, S/O. MATHAI, BINUVILASOM VEEDU, MOTTARA MURI,, POOYAPPALLY VILLAGE, KOTTARAKKARA.** **BY ADVS. M.V.THAMBAN K.V.ANIL KUMAR** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Crl.Appeal No. 795 of 2007 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 03.5.2007 passed by the learned Additional Sessions Judge (Abkari cases), Kottarakkara, in Sessions Case No.721 of 2001. 2. The accused was convicted of the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 26.4.2000 at 10 am the accused was in possession of 50 litres of wash in two aluminium pots, each containing 25 litres, on the premises of Binuvilasom house, Nalkavala, where the accused was residing. The offence was detected by the Sub Inspector of Police, Pooyappally. 4. After the completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate-II, Kottarakkara. The case was committed to the Sessions Court, Kollam from -3- Crl.Appeal No. 795 of 2007 where it was made over to the Trial Court. On 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 the charge levelled against him and therefore, he came to be tried by the Trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 3 and proved Exts.P1 to P7 and Mos 1 to 3. 6. After 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 that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) of the Abkari act and he was -4- Crl.Appeal No. 795 of 2007 convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs.1 lakh. 7. Heard Sri.M.V.Thampan, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the possession of the accused was eventually subjected to analysis at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution succeeded in establishing the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. -5- Crl.Appeal No. 795 of 2007 11. PW3, the Sub Inspector of Police, Pooyappally was on patrol duty at 10 am on 26.4.2000. He got information that the accused had kept wash for the purpose of manufactureing arrack at his residence at Nalkavala. The police team led by PW3 searched the residence of the accused. PW3 seized 50 litres of wash in two aluminum pots from the residence of the accused. On seeing the police party, the accused attempted to escape. But he was arrested by the police team. 12. PW2, a police constable who had accompanied PW3 in the search and seizure, supported the prosecution. 13. PW1, an independent witness, turned hostile to the prosecution. 14. The learned counsel for the accused contended that the delay in the production of the properties including the sample before the Court has not been properly explained by the prosecution. Ext.P4, the list of properties sent to the Magistrate, would show that the -6- Crl.Appeal No. 795 of 2007 bottles containing the sample were produced before the Court only on 24.05.2000, after a month. The prosecution has not offered any satisfactory explanation for the delay in the production of the bottles containing the sample before the Court. 15. 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 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) The Division Bench held that the production of the properties should take place without unnecessary delay and there should be explanation for the delay when there -7- Crl.Appeal No. 795 of 2007 is delayed production of the property. 16. The detecting officer has not given evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample at the place of occurrence. Ext.P1 seizue mahazar is silent regarding the nature of the seal affixed by the detecting officer. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ (2019 KHC 191) this Court held that, 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 and that the nature of the seal used shall be mentioned in the seizure mahazar. 17. The insistence on the evidence regarding the nature and description of the seal affixed on the bottle containing the sample is to enable the court to satisfy the genuineness of the sample produced before the court. 18. There is absolutely no evidence regarding the -8- Crl.Appeal No. 795 of 2007 production of the specimen impression of the seal used by the detecting officer. The specimen impression of the seal had not been forwarded to the Chemical Examiner. There is no evidence regarding the preparation of any forwarding note/requisition in the present case. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” 19. When the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal, so provided, was tallying with the seal affixed on the sample bottle -9- Crl.Appeal No. 795 of 2007 no evidentiary value can be given to the chemical analysis report (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 20. In _**Vijay Pande 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 corelated. 21. It is 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 contraband substance said to have been seized from the possession of the accused (vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]). 22. In the instant case, the prosecution was unable -10- Crl.Appeal No. 795 of 2007 to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Resultantly, the accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 23. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. **Sd/-** **K. BABU JUDGE** das