Baby s/o Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **CRL.A.No.1437 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 289/2004 OF ADDL. SESSIONS COURT/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **APPELLANT/ACCUSED:** **BABY S/O THOMAS, KALAPPURATHOTTIYIL HOUSE, KATTAPPANA VILLAGE, VAZHAVARA KARA.** ## **BY ADV. SRI.GEORGE MATHEWS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SYLAJA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1437 OF 2006** **2** ## **JUDGMENT** **Dated this the 18th day of March 2021** **The accused in S.C.No.289/2004 on the file of the Additional Sessions Court/Special Court for NDPS Act cases, Thodupuzha has filed this appeal being aggrieved by the judgment dated 20.06.2006, whereby he has been convicted for offence under Section 55(a)(i) & 8(1) and** **(2) of the Abkari Act and sentenced to undergo simple imprisonment for 2 years and to pay a fine of ₹1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year, which is to run concurrently.** **2. The case of the prosecution is that the accused was found in possession of 4 litres of arrack and one glass and conducting sale of arrack in a public place in Vazhavara. The offence is said to have been detected on 24.02.2002 at 5.30 p.m. by PW1. Before the trial court PWs 1 to 6 were examined on the side of the prosecution and Exts.P1 to P9 were marked. Material** **CRL.A.No.1437 OF 2006** **3** **objects were produced as MO1, MO2 series and MO3 and MO4 series. The accused when examined under Section 313 Cr.P.C. denied the incriminating evidence adduced against him and stated that he is a headload worker and there was some dispute between the loading and unloading workers of 2 unions. He has stated that the Police of Kattappana did not allow the accused and coworkers to do the work and he was taken to a Police jeep. Then other workers blocked the police jeep. It is stated that he was permitted to alight from the jeep and thereafter a false case was foisted against him. He had also put forward a case that the S.I. of Police is harassing him constantly. On the basis of the evidence on record, the court below found the appellant guilty of the offence and imposed the sentence referred above.** **3. Heard Sri.George Mathews on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.** **4. The main contention put forward by the counsel** **CRL.A.No.1437 OF 2006** **4** **for the appellant is that there is unexplained delay in production of the thondi materials before the court as well as in forwarding the sample for chemical examination, which are factors which will affect the case of the prosecution fatally. He submits that in the light of several judgments of this Court it is necessary that even one day's delay is properly explained by the prosecution.** **5. I find considerable force in the above said submission of the counsel for the appellant. This Court has in the decision** _**Ravi v. State of Kerala (2018 (5) KHC 352)**_ **dealing with the delay of 4 days, stated that the Investigating Officer has to explain the delay and in the absence of explanation even one day's delay is fatal for the prosecution. Similar views have been expressed by this Court in** _**Ramankutty v. Excise Inspector (2013 (3) KHC 308) & Balachandran V. State of Kerala (2020 (3) KHC 697).**_ **6. In the case on hand, according to the prosecution, the incident took place on 24.02.2002.** **CRL.A.No.1437 OF 2006** **5** **According to the prosecution, the thondi materials were seized and the sample was taken at the scene of occurrence itself and the same were produced before the court. It is seen from the records that Ext.P7 property list along with the thondi materials were produced before the court on 26.02.2003 and there is an endorsement directing the production after the cessation of employees' strike. It is in evidence that there was a strike by the employees on the particular day. It would appear that the seized property was not resubmitted immediately after the cessation of strike. The property list of the material objects were subsequently produced only on 21.03.2002 and that too after the direction by the court to resubmit. It is further seen that on 21.03.2002 itself, these objects were returned for the safe custody of the Sub Inspector of Police, Kattappana stating that there is no sufficient place to keep the thondi articles in court. It can thus be seen that the thondi had remained with the Police from the time it was taken custody except on** **CRL.A.No.1437 OF 2006** **6** **21.03.2002 when it was taken to the court and got returned. The delay in production of the thondi articles before the court has not been explained in any manner in the evidence tendered by PW4. All what is stated is that it was returned by the court on 26.02.2002 and thereafter resubmitted on 21.03.2003. The only sentence regarding custody is that “thondi was in my personal custody”. The forwarding note produced as Ext.P8 would show that it was prepared on 25.02.2002. However, though there is an initial against the seal of the Judicial First Class Magistrate, no date is written to indicate the date on which the Magistrate had put his initial on the document. There is a covering slip attached to the forwarding note which would show the seal of the Magistrate with a date 05.04.2002 indicating that forwarding note reached the court only on 05.04.2002, much after the property list was produced in court. This fact is also clear from Ext.P9, the chemical analysis report which says that the sample for analysis** **CRL.A.No.1437 OF 2006** **7** **was received on 24.04.2002 along with a letter from the Judicial First Class Magistrate, which is dated 23.04.2002. It is also significant that the forwarding note does not contain the name of the officer with whom the sample is being forwarded to the Chemical Examiner. There is absolutely no evidence regarding the manner in which the thondi and the sample were kept in safe custody between 24.02.2002 to 21.03.2002 and from 21.03.2002 to 23.04.2002, on which day alone the sample had been forwarded to the Chemical Examiner. These factors casts serious doubt regarding the question whether the thondi articles and sample which was allegedly collected at the scene of occurrence was the very same thondi and sample which were produced before the court on 21.03.2002 and on the question whether it is the same sample which was sent to the Chemical Examiner on 23.04.2002 for examination and received by him in tamper proof condition.[see** _**Anilkumar V. State of Kerala and Another (2020 (4) KHC 172) & Kumaran v. State of Kerala (2016 (4) KLT 718)].**_ **CRL.A.No.1437 OF 2006** **8** **In the circumstances of the case, the appellant is entitled to succeed in this appeal. Hence the judgment dated 20.06.2006 in S.C.No.289/2004 on the file of the Additional Sessions Court/Special Court for NDPS Act cases, Thodupuzha is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled. On 27.07.2006, this Court had directed the appellant to deposit a sum of 5,000/- before the trial₹ court. The appellant is entitled to the refund of the said amount, for which he may approach the trial court with proper application.** **This appeal stands allowed.** **Sd/-** **T.R.RAVI, JUDGE** **Pn**