Biju, s/o Ouseph v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2019-07-18
Court Decision / Holding: The appeal is allowed; conviction and sentence set aside; the appellant is acquitted. The bail bond of the appellant stands discharged.
Final Disposition: Acquitted; conviction set aside; bail bond discharged

Parties to the Case

Appellants / Petitioners

Biju, s/o Ouseph, KalariKKamackal House, Anakulam Kara, Koumpanpara, Vellathoolval Village, Devikulam Taluk

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri C.K. Vidyasagar
• Sri P. Chandy Joseph
• Sri V.C. Sarath (Amicus Curiae)

Counsels for Respondents

• Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

This is a Kerala High Court criminal appeal (CRL.A. No. 2762 of 2008) arising from a conviction under the Abkari Act. On 10 December 1999, the appellant was found in possession of 40 litres of wash and 2 litres of arrack, and was convicted under Section 55(a) and (g) of the Abkari Act by the trial court. The central issues concern the chain of custody and link between the contraband, the samples, and the appellant. The Amicus Curiae contended that there was an inordinate delay in producing the contraband and sample for laboratory analysis, with Ext.P6 showing the contraband produced only on 6 July 2000, well after seizure, and PW3’s explanations for the delay appearing untenable. He argued that the long delay and lack of proper custody undermine the reliability of the prosecution’s evidence, including Ext.P8 (chemical analysis) and Ext.P7 (forwarding note). The court scrutinized these lacunae and held that there was no credible link between the samples and the contraband and that there was no assurance that the laboratory analyses pertained to the seized material. Relying on a prior decision (Krishnan H. v. State) to emphasize the significance of missing sample seals, the court ultimately acquitted the appellant, set aside the conviction, discharged the bail bond, and allowed the appeal.

Provisions of Law Cited

Abkari Act, s.55(a)Abkari Act, s.55(g)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s position was that the prolonged delay in producing the contraband and its samples before the court undermined the safe custody and identity of the material, severing the affirmative link between the seized contraband and the samples analysed in the laboratory. The absence of a properly sealed forwarding note (Ext.P7) and the lack of evidence that the samples sent to the laboratory corresponded to what was seized (and the absence of evidence regarding sample custody) cast serious doubt on the conviction. The reliance on Ext.P8 (chemical analysis) was therefore unfounded given the gaps in chain-of-custody and sample integrity. The decision in Krishnan H. v. State was invoked to support the principle that lack of a sample seal can undermine the authenticity and linkage to the original sample.

Contentions of Respondents

The document does not provide a detailed, separate synthesis of the respondents’ arguments within the extract. It notes the Public Prosecutor’s role and records the Amicus’ arguments contending delay and custody issues; the trial court’s verdict and the laboratory analysis were scrutinized, but explicit prosecutorial argumentation is not summarized in the provided portion.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishnan H. v. State	2015(1) KHC 822	Positive	The judgment cites Krishnan H. v. State to illustrate that the absence of a sample seal can support a finding that the sample seal was not provided, thereby undermining the link between the contraband and the laboratory analysis.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941** ## **CRL.A.No.2762 of 2008** **AGAINST THE ORDER/JUDGMENT IN SC 488/2007 of ADDL. SESSIONS COURT (SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** **APPELLANT/S:** **BIJU, S/O OUSEPH, KALARIKKAMACKAL HOUSE, ANAKULAM KARA, KOOMPANPARA, VELLATHOOVAL VILLAGE, DEVIKULAM TALUK.** **BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH SRI.V.C.SARATH AMICUS CURIAE** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **SRI.C.S.HRITHWIK,PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL.A.No.2762 of 2008** -2- ## **JUDGMENT** **The appellant was convicted and sentenced by the court below under Sections 55(a) and (g) of the Abkari Act.** **2. The prosecution allegation is that on 10.12.1999 at about 1.15 p.m., the appellant was found in possession of 40 litres of wash and 2 litres of arrack in contravention of the provisions of the Abkari Act.** **3. Since there is no representation for the appellant, this Court has appointed Adv.Sri.V.C.Sarath as Amicus Curiae to argue the case for the appellant.** **4. Heard the learned Amicus Curiae and** ## **CRL.A.No.2762 of 2008** -3- ## **the learned Public Prosecutor.** **5. The learned Amicus Curiae has argued that since there was inordinate delay in producing the contraband and the samples before the court, the appellant is entitled to benefit of doubt.** **6. Ext.P6 is the property list, which would show that the contraband and the sample of wash were produced before the court on 6.7.2000 even though the seizure was effected on 10.12.1999. PW3 produced the contraband and the sample of wash before the court. PW3 stated that he was** **having other official engagements and hence there occurred delay in producing the contraband and the sample before the court.** ## **CRL.A.No.2762 of 2008** -4- **The said explanation given by PW3 cannot be said to be a reasonable and plausible explanation justifying the long delay from 10.12.1999 to 6.7.2000 in producing the contraband and the sample of wash before the court. The sample of arrack was not produced before the court.** **7. Having gone through the evidence of PW3 carefully, this Court is of the view that the evidence of PW3 is not sufficient to prove the safe custody of the contraband and the sample of wash till their production before the court. Since there was no proper** ## **CRL.A.No.2762 of 2008** -5- **explanation for the long delay from 10.12.1999 to 6.7.2000 in producing the contraband articles and the sample of wash before the court, there cannot be any guarantee that the sample of wash produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant, particularly when there is no evidence with regard to the safe custody of the sample till its production before the court.** **8. There is also no evidence with regard to the production of the sample, drawn from the arrack, before the court. In the said circumstances, there is no guarantee that** ## **CRL.A.No.2762 of 2008** -6- **the sample of arrack analysed in the laboratory was the sample drawn from the contraband seized from the appellant, particularly when there is no evidence with regard to the safe custody of the sample of arrack till its production before the laboratory. In the said circumstances, there is no link evidence connecting the appellant with the samples analysed in the laboratory. Consequently, the conviction and sentence passed by the court below, relying on Ext.P8 certificate of chemical analysis cannot be sustained.** **9. It is also to be noted that Ext.P7 copy of the forwarding note does not contain the sample seal at the space provided for** ## **CRL.A.No.2762 of 2008** -7- **the same. This Court in Krishnan H. v. State [2015(1) KHC 822] 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 on the original forwarding note. 10. In this case, Ext.P7 is the forwarding note, which would show that the sample of wash and sample of arrack were sent to the laboratory for analysis. However, no sample seal is seen affixed at the space provided for the same in Ext.P7 forwarding note. No evidence was also adduced by the prosecution to show that the sample seal was affixed on the original** ## **CRL.A.No.2762 of 2008** -8- **forwarding note. In the said circumstances, there is no guarantee that the samples analysed in the laboratory were the samples drawn from the contraband seized from the appellant. Therefore, there is no link evidence connecting the appellant with the samples analyzed in the laboratory. In the said circumstances also, the conviction and sentence passed by the court below relying on Ext.P8 certificate of chemical analysis, cannot be sustained.** **In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond** ## **CRL.A.No.2762 of 2008** -9- ## **of the appellant stands discharged.** Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//