BALU @ BALAKRISHNAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936 CRL.A.No. 1130 of 2005 (F) -----------------------------AGAINST THE JUDGMENT IN SC 970/2000 of ADDL. SESSIONS COURT (ADHOC-I), KASARAGOD DATED 10-06-2005 ------- APPELLANT/ACCUSED: ------------------------- BALU @ BALAKRISHNAN, S/O.KUNCHIRAMAN, NR.PUTTIGE L.P.SCHOOL, PUTTIGE KASARAGODE. BY ADV. SRI.I.V.PRAMOD RESPONDENT/STATE: ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.1130 of 2005 -----------------------------------------------Dated this the 8[th] day of July, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ rigorous imprisonment for a period of six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. The learned counsel for the appellant submits that the appellant expired after filing this appeal. The memo filed by the learned Public Prosecutor along with a copy of the Death Certificate confirmed the death of the appellant on 25-10-2009. 3. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the Crl. Appeal No.1130 of 2005 -2- sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case. 4. The prosecution case is briefly stated as follows: PW2, the Sub Inspector of Police, Kumbla Police Station and his party were on patrol near the Kumbla Bridge at about 8.30 p.m. on 25-05-1999. While so, an Ambassador car was seen coming at an over speed from Mangalore side. Despite giving signal for stopping that car, without stopping the same, it went forward at an over speed. PW2 and his party followed that car in a jeep. After five minutes, they could overtake the car in front of the bus waiting shed at Mavinakatta and stopped the car there. 18 plastic bags were seen at different parts inside the car. On opening and examining those bags, it was found that each bag contained 500 polythene packets each containing 100 ml. of arrack manufactured in Karnataka. Thus, a total of 9000 packets were seen. Since the appellant imported arrack from Crl. Appeal No.1130 of 2005 -3- Karnataka to Kerala, he was arrested then and there. Ext.P8 is the Arrest Memo prepared by PW2 in the presence of witnesses. PW2 has taken eight packets containing arrack from the mixed bulk of 9000 packets and opened them. The arrack contained in the opened packets was taken in two 375 ml. bottles as samples. Those sample bottles were sealed. The entire packets containing arrack including samples and the car were seized by PW2 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW2 left the place with the appellant and the properties and reached Kumbla Police Station at 10.30 p.m. on that day. Then, PW2 has registered Crime No.118 of 1999 of that Police Station in respect of the occurrence against the appellant and another. Ext.P2 is the FIR thus drawn by PW2. He has produced the accused along with the Remand Report before the court. He has also produced the records and the properties including samples before the court. He has prepared Ext.P4 Scene Mahazar in the presence of witnesses. He has conducted the investigation of the case. Crl. Appeal No.1130 of 2005 -4- He has questioned the witnesses and recorded their statements. He has also produced the Forwarding Note before the court for the purpose of subjecting the sample to chemical analysis. After completing the investigation, he has submitted the Final Report against both the accused before the Judicial First Class Magistrate's Court, Kasaragod. The case against the second accused was quashed by this Court as per order dated 13-07-2000 in Crl.M.C. No.2512 of 2000. 5. The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Kasaragod. Later, it was made over to the Additional Sessions Court (Adhoc)-I, Kasaragod. The court below framed a charge alleging the offences under Sections 55(a) and 8(2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P8 and MO1 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. The defence has not Crl. Appeal No.1130 of 2005 -5- adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that PW2 and his party detected the offence at about 8.30 p.m. on 25-05-1999 and PW2 has seized the contraband along with the samples under Ext.P1 Seizure Mahazar at 8.40 p.m. on 25-05-1999 in the presence of witnesses. But, PW2 has produced the properties so seized before the court only on 28-06-1999 along with Ext.P3 List of Property. Ext.P3 is seen prepared on 22-06-1999. But, it was presented before the court along with the properties only on 28-06-1999. What was the reason for occurring such an inordinate delay in producing the properties before the court ? PW2 explained that the properties were under his custody till they were sent to the court. He also stated that Crl. Appeal No.1130 of 2005 -6- owing to urgent law and order problems, the delay occurred in sending the properties to the court. Whether such an explanation offered by PW2 is sufficient and satisfactory ? In any of the documents, including Ext.P3 List of Property, produced by PW2 before the court contains such an explanation offered by PW2 before the court ? He has produced the FIR, Arrest Memo and Remand Report on 26-05-1999. He has also produced the Scene Mahazar on 28-05-1999. Then, he was not facing any urgent law and order problems preventing him from producing those documents. Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW2 did not tell the court as to what were the urgent law and order problems that prevented him from producing the contraband items till 28-06-1999 after their seizure on 25-05-1999. A bald statement that he was busy with law and order duties cannot be accepted as a satisfactory explanation for such an inordinate delay in producing the properties before the Crl. Appeal No.1130 of 2005 -7- court. 7. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW2 is not proper and satisfactory. 8. It is the prosecution case that the samples taken by PW2 were sealed by PW2. PW2 stated that the seal thus used by him has three letters, namely, 'SHO'. Ext.P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in the sample. Also noted in Ext.P6 that the seal on the bottle was intact and found tallied with the sample seal provided. Which sample seal was so provided ? Was it the sample of the seal affixed on the sample ? PW2 pleaded ignorance as to which seal is Crl. Appeal No.1130 of 2005 -8- referred to in Ext.P6. The Property Clerk of the concerned Magistrate's Court was examined as PW4. He stated that while receiving the properties in court, the seal affixed on the sample was intact. Seal of the court would be affixed on the reverse side of the sample bottle and thereafter only sample would be sent. The seal of the court would be affixed on the Forwarding Note as well. The original of the Forwarding Note would be affixed with the seal of the Detecting Officer. Such seal would be affixed on the copy of the Forwarding Note also. He further stated that if the seal is affixed on the original Forwarding Note, such seal impression should be affixed on the copy also. PW4 did not say specifically whether the original Forwarding Note in this case had the seal of the Detecting Officer. His evidence only shows that usually the original Forwarding Note would contain such a seal. Moreover, such seal would be affixed both on the original and on the copy. It is also his evidence that if seal is affixed on the original Forwarding Note, such seal impression should be affixed on the copy also. Ext.P5 is Crl. Appeal No.1130 of 2005 -9- the copy of the Forwarding Note marked in this case. There is a space provided in this document for affixing the sample seal. But no such sample seal appears in Ext.P5. Therefore, by producing and marking Ext.P5, it cannot be proved that the original of the Forwarding Note was affixed with such a seal. Moreover, the evidence of PW4 shows that the seal of the court would be affixed on the reverse side of the sample bottle and such seal would also be affixed on the Forwarding Note. Ext.P6 Certificate of Chemical Analysis contains a statement that the seal on the bottle was intact and found tallied with the sample seal provided. When this statement made in Ext.P6 is considered in the light of the evidence of PW4, the 'seal on the bottle' and the 'sample seal provided' can either be the seal affixed on the sample bottle by the investigating agency and such seal affixed on the Forwarding Note or the seal of the court affixed on the sample bottle and such seal affixed on the Forwarding Note. In such a circumstance, there is no assurance that the sample subjected to examination at the Chemical Crl. Appeal No.1130 of 2005 -10- Examiner's Laboratory was exactly the sample drawn by PW2 from the bulk of the arrack seized. Moreover, neither PW2 nor PW1, the police constable who accompanied PW2 at the time of the alleged seizure of the contraband, deposed before the court that sample seal of the seal affixed on the sample was provided for comparison to the Chemical Examiner. Therefore, there is no assurance that the sample of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the sample was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 9. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows: “.......... The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is Crl. Appeal No.1130 of 2005 -11- no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” This Court in **Ravi v. State of Kerala** (supra) also held that the prosecution can succeed only if it is shown that the contraband liquor which is allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession Crl. Appeal No.1130 of 2005 -12- of the accused. Therefore, for these reasons, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by the appellant shall stand cancelled. Since the appellant expired during the pendency of this appeal, no further orders are required. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.1130 of 2005 -13-