Baby, S/o Ulahannan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** ## **CRL.A.No.1444 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 191/2002 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA** ## **APPELLANT/S/ACCUSED:** **BABY, S/O. ULAHANNAN, AGED 38, KODULUNKAL HOUSE, PAYYAMPILLY,, PADAMALA.** **BY ADV. SRI.S.SREEKUMAR** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SMT.M.K.PUSHPALATHA. SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1444 OF 2006** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 55 (a) of the Abkari Act. 2. The is that on prosecution allegation 27.02.2000, at about 3.13 p.m., the appellant was found in possession of 45 packets of Karnataka made arrack, each packet having a capacity of 100 ml each, in contravention of the provisions of the Abkari Act. The total quantity of contraband possessed by the appellant was 4.5 litres of Karnataka made arrack. 3. Heard. 4. The learned Counsel for the appellant has **CRL.A.No.1444 OF 2006** **3** argued that since there was delay in producing the contraband and the samples before the court, the appellant is entitled to benefit of doubt. It has been further argued by the learned Counsel for the appellant that since no sample seal was affixed at the space provided for the same in the copy of the forwarding note, the appellant is entitled to benefit of doubt on that ground as well. 5. Ext.P4 is the property list, which would show that the contraband and the samples were produced before the court on 02.03.2000. PW1 produced the contraband and the samples before the court. PW1 stated that he produced the contraband and the samples before the court on 02.03.2000. PW1 further **CRL.A.No.1444 OF 2006** **4** stated that he was having other urgent duties and hence he could not produce the contraband and the samples before the court immediately on seizure of the contraband. It had been stated by PW1 that the accused was produced before the court on 28.02.2000. It appears from the evidence of PW1 that he seized the contraband from the spot. He also had drawn the samples from the contraband and sealed the same at the spot. However, he did not state as to why the contraband and the samples could not be produced before the court on 28.02.2000, when the accused was produced before the court. No reason is available in this regard in the evidence of PW1. It is also not discernible as to why the contraband and the samples could not be produced before the court on 28.02.2000 **CRL.A.No.1444 OF 2006** **5** at the time of production of the accused before the court **.** In view of the above, the explanation given by PW1 cannot be said to be a reasonable and plausible explanation, justifying the delay from 27.02.2000 to 02.03.2000 in producing the contraband and the samples before the court. The delay as such is not always fatal to the prosecution case. However, if the delay is not properly explained, the same is, no doubt, fatal to the prosecution case. In this case, since the delay was not properly explained, the appellant is entitled to benefit of doubt. 6. It is also to be noted that no sample seal is seen affixed on Ext.P5 copy of the forwarding note. 7. In Prakasan and Another v. State of Kerala **CRL.A.No.1444 OF 2006** **6** [2016 (1) KLD 311], the Court held thus: “Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the **CRL.A.No.1444 OF 2006** **7** contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” 8. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” **CRL.A.No.1444 OF 2006** **8** 9. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper-proof condition. 10. In Krishnan.H v. State [2015 (1) KHC 822], the court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. 11. PW1 had produced the contraband and the samples before the court. PW1 stated that he produced the samples before the court along with a forwarding **CRL.A.No.1444 OF 2006** **9** note. Ext.P5 is the copy of the forwarding note. However, Ext.P5 does not contain the facsimile of the seal at the space provided for the same. PW1 also did not state that he had affixed the sample seal on the original forwarding note. In view of the above, the tamper-proof despatch of the samples to the laboratory could not be established by the prosecution. In the said circumstances also, the appellant is entitled to benefit of doubt. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. Needless to state that if the appellant had **CRL.A.No.1444 OF 2006** **10** already deposited any amount before the trial court pursuant to the direction of this court, the appellant is entitled to reimbursement of the said amount from the court concerned. **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/08.10.2020