Bharathan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943 CRL.A NO. 2332 OF 2006** **AGAINST THE JUDGMENT IN SC 480/2002 OF THE ADDITIONAL** **SESSIONS JUDGE, (ABKARI), KOTTARAKKARA, KOLLAM APPELLANT/ACCUSED:** **BHARATHAN, S/O NARAYANAN UNNI BHAVAN, THEVALAKKARA, PATHIRICKAL MURI,, PATHANAPURAM TALUK.** BY ADVS. S.K.DEVI SANTHOSH P.ABRAHAM ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, PATHANAPURAM** . **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2332 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Crl.A No.2332 of 2006** --------------------------------------Dated this the 8[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 04-11-2006, passed by the learned Additional Sessions Judge (Abkari), Kottarakkara in S.C No.480/2002, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55 (a) of the Abkari Act. 3. The prosecution case is that on 19-09-1999 at 12.45 p.m., the accused was found in possession of 4 litres of illicit arrack for sale in a plastic can having a capacity of 5 litres at Thevalakkara in Pathirikkal muri, Pathanapuram Village. 4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the Judicial Magistrate of First Class-III, Punalur. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court (Abkari), Kottarakkara. On appearance of the accused charges were Crl.A No.2332 of 2006 3 framed against him for the offences punishable under Secs.55(a) and (i) of the Abkari Act. The accused pleaded not guilty to the charges levelled against him and therefore, he came to be tried by the trial court for the aforesaid offences. 5. The prosecution examined PW1 to PW4 and proved Exts.P1 to P5 and MO1 and MO2. 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 arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was acquitted of the offence under Section 55(i) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1 Lakh for the offence under Sec.55(a) of the Abkari Act. 7. Heard Sri.Santhosh P.Abraham, the learned counsel for the appellant and Sri.M.S.Breez, the learned Senior Public Crl.A No.2332 of 2006 4 Prosecutor. 8. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction: i) There is inordinate delay in the production of the properties before the court. ii) The prosecution failed to establish that the articles said to have been seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 11. PW4, the Sub Inspector of Police, Pathanapuram, detected the offence. He has given evidence that on 19.9.1999 while the police party led by him was on patrol duty, at 1 pm, on getting reliable information that the accused was engaged in the sale of arrack, they proceeded to the scene of occurrence at Crl.A No.2332 of 2006 5 Vettiayyam and found the accused in possession of the contraband articles. 12. PW4 has given evidence that the can containing illicit arrack in the possession of the accused was seized from which he collected 150 ml of arrack in a bottle having a capacity of 180 ml as sample. According to PW4, the contraband articles were seized as per Ext.P1 seizure mahazar and the accused was arrested as per Ext.P2 arrest memo. PW4 registered Ext.P3 FIR on the basis of Ext.P1 seizure mahazar. PW3, the Police Constable who had accompanied PW4, supported the version of the prosecution regarding seizure, arrest etc. PWs1 and 2, the independent witnesses, did not support the prosecution. 13. The learned counsel for the appellant submitted that though Ext.P4 property list was prepared on 19.9.1999, the properties including the sample were produced before the court only on 28.9.1999. PW4, the detecting officer failed to give any explanation as to the delayed production of the properties including the sample before the court. The explanation of PW4 is that the properties were kept in his safe custody which is no way a satisfactory explanation for the delay in the production of the properties. Crl.A No.2332 of 2006 6 14. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another (2011(3) KHC 121)** held thus: “8(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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) 15. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 16. The learned counsel for the appellant further contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the hands of Public Analyst. Crl.A No.2332 of 2006 7 The learned counsel relied on the following circumstances in support of his contention: a) The detecting officer and the other official witness who had accompanied PW4, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. b) Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used. c) The copy of the forwarding note, wherein the specimen of the seal is to be affixed and the name of the person, with whom the sample bottle was forwarded, is to be mentioned, has not been produced before the court. 17. PW4, the detecting officer and PW3, the Police Constable, who had accompanied PW4 have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, does not contain the specimen impression of the seal stated to have been affixed on the bottle containing the sample. There is no Crl.A No.2332 of 2006 8 mention regarding the nature and description of the seal used in Ext.P1 seizure mahazar. 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. The nature of the seal used shall be mentioned in the seizure mahazar. (vide: ## **Bhaskaran v. State of Kerala and another (2020 KHC** **5296), Krishnadas v. State of Kerala (2019 KHC 191)** . 18. The learned counsel for the appellant further contended that the prosecution failed to adduce any evidence to show that the specimen impression of the seal was provided to the Chemical Examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the sample. There is absolutely no evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample by the detecting officer and that the same had been provided to the Chemical Examiner. The copy of the forwarding note, wherein the specimen of the seal is to be affixed and the name of the official with whom the sample bottle was entrusted for delivering the same to the Chemical Examiner's laboratory is to be mentioned, has not been produced and marked in this case. In **Ramachandran v. State of Kerala (2021(1) KLT 793)** while dealing with a case Crl.A No.2332 of 2006 9 ## 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. In **Rajamma v. State of Kerala (2014(1) KLT** ## **506)** , this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is 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 PW1 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”. 20. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Crl.A No.2332 of 2006 10 Examiner, no evidentiary value can be given to Ext.P5 chemical analysis report. 21. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 22. 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 bulk quantity of the alleged 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]** 23. In the instant case the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence. Crl.A No.2332 of 2006 11 24. 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 and he is acquitted of the charge. The appellant is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU JUDGE** ab