Balachandran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **CRL.A.No.2149 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 125/2002 DATED 11-10-2007 OF ADDITIONAL SESSIONS JUDGE, KOTTARAKKARA** ## **APPELLANT/S/ACCUSED:** **BALACHANDRAN, S/O. KUTTAN PILLAI, VARIYATHU VADAKKETHIL VEEDU, KODACKODU MURI,, KAREEPRA VILLAGE, KOTTARAKKARA.** **BY ADV. SRI.SAJU.S.A** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** **ADV. THAREEQ ANVER, AMICUS CURIAE, SMT.SREEJA.V, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2149 OF 2007** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 55 (a) and (i) of the Abkari Act. 2. The is that on prosecution allegation 18.06.1999 at about 6.30 p.m., the appellant was found in possession of 5 litres of arrack, in contravention of the provisions of the Abkari Act. 3. The counsel for the appellant passed away, submitted at the bar. No alternative arrangement has been so far made by the appellant, even after giving due intimation to the appellant, submitted by **CRL.A.No.2149 OF 2007** **3** Adv. Sri. Thareeq Anver. This appeal is of the year 2007. Therefore, this Court has appointed Adv. Sri. Thareeq Anver as Amicus Curae to argue the case for the appellant. 4. Heard the learned Amicus Curae and the learned Public Prosecutor. 5. The learned Amicus Curae has argued that since there was unexplained 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 Amicus Curae that since no forwarding note was produced or marked in this case, the tamper-proof despatch of the samples to the laboratory could not be established and in the said **CRL.A.No.2149 OF 2007** **4** circumstances also, the appellant is entitled to benefit of doubt. 6. Ext.P4 is the property list, whereby the contraband and the samples were produced before the court. The incident in this case was on 18.06.1999. However, Ext.P4 would show that the samples and the contraband were received in the court only on 28.07.1999. PW4 produced the contraband and the samples before the court. PW4 stated that he produced the contraband and the samples before the court on the date of seizure itself. However, the same was returned due to the paucity of space in the court. Thereafter, PW4 produced the contraband and the samples before the court on 28.07.1999. **CRL.A.No.2149 OF 2007** **5** 7. Ext.P4 is the property list, which does not contain any endorsement made by the Magistrate. If the contraband and the samples were produced before the learned Magistrate on 18.06.1999 as stated by PW4, there would have been an endorsement in this regard on Ext.P4 property list. However, no such endorsement is seen on Ext.P4 property list. It is the normal practice that if any material object is produced before the there will be an court/Magistrate, endorsement by the court/Magistrate on the list produced along with the material object. In the absence of any endorsement in this regard on Ext.P4, it is not safe to rely on the evidence of PW4 in this regard. Consequently, it has to be held that there was no explanation for the long delay in producing the **CRL.A.No.2149 OF 2007** **6** contraband and the samples before the court. 8. The delay as such is not always fatal to the prosecution case. However, if there is unexplained delay, the same is, no doubt, fatal to the prosecution case. In this case, since there was unexplained delay from 18.06.1999 to 28.07.1999 in producing the contraband and the samples before the court, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the appellant and consequently, the appellant is entitled to benefit of doubt. **CRL.A.No.2149 OF 2007** **7** 9. It appears that no forwarding note was produced or marked in this case. 10. In Prakasan and Another v. State of Kerala [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 **CRL.A.No.2149 OF 2007** **8** which it was seized and it reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the 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.” 11. 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 **CRL.A.No.2149 OF 2007** **9** specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 12. 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. 13. In this case, the forwarding note was neither produced nor marked before the court. Therefore, there is no satisfactory link evidence to show that the same samples, which were drawn from the **CRL.A.No.2149 OF 2007** **10** contraband seized from the appellant, which eventually reached the hands of the Chemical examiner in a tamper-proof condition and in the said circumstances, the conviction and sentence passed by the court below on the basis of Ext.P5 certificate of chemical analysis cannot be sustained. 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. **Sd/-** ## **B.SUDHEENDRA KUMAR** **JUDGE** RK/23.09.2020