Biju, S/o Balan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 ``` ## **`CRL.A NO. 1686 OF 2008`** ``` AGAINST THE JUDGMENT IN SC 611/2006 OF ADDITIONAL DISTRICT COURT(ADHOC II), THRISSUR ``` ## **`APPELLANT/ACCUSED:`** ``` BIJU, S/O BALAN, KUNNATHULLY HOUSE, ANJOOR HOUSE, AYYANKUNNU SANKARAMKANDA DESOM, THRISSUR DISTRICT. ``` ``` BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE,, ANTHIKKADU, THRISSUR DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY Seetha S, GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1686 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 07.08.2008, passed by the Additional Sessions Court, Fast Track Court No.II-[Adhoc], Thrissur, in Sessions Case No.611 of 2006, the accused has preferred this appeal. The appellant was convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.12.2001 at 1.05 p.m., the accused was found in possession of 20 litres of wash contained in a plastic can at Sankaramangalam in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the jurisdictional Magistrate. The case was committed to ``` CRL.A NO. 1686 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 6 and proved Exts.P-1 to P-12 and MO1. 5. After the 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 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 the arguments addressed on both sides, found the accused guilty of the offence under Section 55(g) of the Abkari Act and convicted him ``` CRL.A NO. 1686 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** thereunder. 6. Heard Sri.Nireesh Mathew., the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (1) Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (2) The delay in the production of the properties ``` CRL.A NO. 1686 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** including the sample has not been satisfactorily explained by the prosecution. - (3) Forwarding note/requisition for sending sample was not produced and marked. 9. The alleged seizure was effected on 21.12.2001. The Detecting Officer had drawn the sample at the scene of occurrence. The properties including the sample were produced before the Court only on 24.12.2001 as is evident from Ext.P9 property list. There is no satisfactory explanation for the delay in the production of properties including the sample before the jurisdictional Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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 ``` CRL.A NO. 1686 OF 2008 ``` ..6.. practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The Detecting Officer has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court at the time of production of ``` CRL.A NO. 1686 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** properties including the sample. There is nothing to show that the specimen seal was forwarded to the Chemical Examiner’s Laboratory. Forwarding note/ requisition for sending the sample was not produced and marked. 13. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 14. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof ``` CRL.A NO. 1686 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 15. The sample remained in the custody of the property clerk of the Court till the same was forwarded as per the letter dated 03.02.2003 of the Judicial First Class Magistrate-I, Kunnamkulam. An Excise guard by name Shri. P.K.Sudheeran received the bottle containing the sample from the Court on 03.02.2003. He delivered the same on the laboratory on 04.02.2003. Neither the Property Clerk of the Court nor Shri. P.K. Sudheeran was examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Nonexamination of those two officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. ``` CRL.A NO. 1686 OF 2008 ``` ..9.. 16. Since the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s laboratory, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 17. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 55(g) of the Abkari Act. In the result, - (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; ``` CRL.A NO. 1686 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj