## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE P.D.RAJAN**
**THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937**
## **CRL.A.No. 2101 of 2005**
**---------------------------**
## **AGAINST THE JUDGMENT IN SC NO. 726/2000 of ADDITIONAL SESSIONS FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 02-11-2005**
**APPELLANT/ACCUSED:**
**---------------------------------**
**BINU, S/O.MADHAVAN, CHANALKKARAVEEDU, MANAMCHIRA COLONY, THALAYAL DESOM, ATHIYONOOR VILLAGE.**
## **BY ADVS.SRI.R.T.PRADEEP AND SRI.V.VIJULAL**
## **RESPONDENT/COMPLAINANT:**
**-------------------------------------------**
**THE STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR DANESH MATHEW MANJOORAN**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**rmm**
## **P.D. RAJAN, J. --------------------------Crl. Appeal No.2101 of 2005 ---------------------------------Dated this the 11[th] day of February, 2016**
## **J U D G M E N T**
This appeal is preferred by the accused against the conviction and sentence passed by the Additional Sessions Court (for trial of Abkari Cases), Neyyattinkara in S.C. No.726 of 2000 under Sec.55(a) and (i) of the Abkari Act. The charge against the appellant was that, on 15.08.1999, the Sub Inspector of Police, Balaramapuram was conducting patrol duty within his jurisdiction. When he reached at Thempamuttom-Puthrakkadu colony, the accused was found possessing 750 m.l. of arrack and a glass tumbler of 150 m.l. capacity. The Sub Inspector arrested him, seized the contraband articles and registered a crime. After completing investigation, he laid charge before the Judicial First Class Magistrate CourtIII, Neyyattinkara. From there, the case was committed to Sessions Court. Subsequently, it was made over to the Additional Sessions Court (for Abkari cases), Neyyattinkara.
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2. During trial, the prosecution examined four witnesses and marked Exts.P1 to P6. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused and sentenced him to rigorous imprisonment for two years and fine of Rs.1,00,000/- in default of payment of fine, simple imprisonment for three months. Being aggrieved by that, he preferred this appeal.
3. Learned counsel appearing for the appellant contended that there is delay of two days in producing the articles before the court. Forwarding note was not produced before the court to ensure that proper sampling and sealing was made by the detecting officer. When there is a failure to comply with the procedure of seizure, the appellant is entitled to get the benefit of doubt.
4. Learned Public Prosecutor admitted that there is no forwarding note. He contended that, it is not a
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ground for acquitting the accused when other formalities are properly complied by the investigating officer.
5. It is true that the appellant was arrested by the Sub Inspector of Police, Balaramapuram on 15.08.1999. The occurrence was stated by PW1. In this context, I have examined whether arrest of the accused with material object is sufficient for a conviction under Sec.55(a) and (i) of the Kerala Abkari Act. This Court in **Rajamma Vs. State of Kerala [2014 (1) KLT 506]** held as follows:
“Mere arrest of the accused with the material object is not sufficient to establish that the accused has committed the offence punishable under Sec.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed
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before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. 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 the 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.”
6. In this context, I have verified whether the delay in producing the sample will affect the credibility of the case. In **Ravi v. State of Kerala [2011 (3) KLT 353]** this court held that there is no statutory mandate under the provisions of the Act to produce forthwith the properties before the court. Therefore, the contention
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that two days delay in producing the article before the court will affect the credibility is discarded. As rightly, the police officer after seizing the contraband article deposited it in the SHO and subsequently produced before the court will not affect the credibility. In this back drop, I have examined whether non production of the forwarding note is relevant in abkari cases.
7. The detection was made by PW4 and his evidence shows that on 14.08.1999, he was conducting patrol duty and when he reached at the place of occurrence, the appellant was found possessing 750 m.l. of arrack and a glass tumbler of 150 m.l. capacity and on seeing the police, the appellant tried to ran away. PW1 intercepted him, inspected the bottles and identified it as arrack. He arrested the accused and seized the contraband articles. He took 180 m.l. as sample. He prepared Ext.P2 mahazar and on the basis of that, he registered the crime. Ext.P3 is the First Information Report in the above crime. The seized articles were produced before the court. Ext.P4 is the remand
## Crl. Appeal No.2101 of 2005 6
application and Ext.P5 is the property list. Subsequently, the sample was sent over to chemical examination lab but the copy of the forwarding note was not found in the court records. Ext.P6 is the chemical examination report.
8. A perusal of Ext.P1 and Ext.P2 shows that PW4 has not affixed any label as sample but he sealed it. No identification mark were affixed in Ext.P2 or P3 to show that he affixed the specimen seal in those two records. It is the primary responsibility of the detecting officer to affix the seal and label on the sample. The sample sealed and marked with a particular number has to be entered in appropriate columns of the register or in the occurrence report. But, such a specimen seal affixed was not mentioned in the First Information Report or seizure. PW3 deposed that he accompanied PW4. The independent witnesses PW1 and PW2 did not support the prosecution case but they identified their signature in Ext.P1. But, PW2 denied the signature in Ext.P2 mahazar. When an investigating officer affixed his seal in the sample it is his primary responsibility to produce the
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specimen seal before the court so as to ensure that proper sampling and seal impression was made at the time of seizure. In the absence of such proof, no evidentiary value can be given to Ext.P6, chemical examination report.
## 9. This court in **Ravi V. State of Kerala**
## **[ 2011 (3) KLT 353 ]** held as follows:
“There is no statutory mandate under the above provision to “forthwith” produce the properties before the court. What is insisted on is that the seizure of the property should be forthwith reported to the Court. But that does not mean that the detecting or investigating officer can produce the property leisurely, particularly when the nature and contents of the property can be convincingly established only through expert opinion obtained either in the form of chemical analysis or the report of a forensic or other expert for which the property should reach the court without unreasonable delay. Delayed production before court of the seized property (wherever it is practicable) is likely to be frowned upon by Courts because of the possible misuse or tampering with of such property while in the custody of the officer concerned. There is also the chance of such property getting misplaced. Under sub-s.(3) of S.40 it is provided that every person arrested and every article seized shall be forwarded without unnecessary delay to the officer in charge of the nearest Police Station or to the officer empowered under S.5A of the Abkari Act or to
## Crl. Appeal No.2101 of 2005 8
the Abkari Inspector. Here also there is no statutory mandate to “ produce” the property before the Court “forthwith”. But the very fact that the statute insists on production of the property before an officer of a particular designation or rank is to ensure that there is no misuse of the property. Likewise, unless the property is before Court, there cannot be a proper ascertainment of the nature and content of the property by requestioning the service of an expert through the instrumentality of the Court. Hence, production of the property before Court without unreasonable delay is also a necessary requirement of law. Delay in producing the property before Court, by itself, cannot be fatal to the prosecution if the delay can be satisfactorily explained. 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.103(2) 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.”
Therefore, it is the duty of the prosecution to prove the case beyond reasonable doubt. When there is no satisfactory evidence to show that the sample bottle was properly produced before the court and it was sent
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over to chemical examination lab in a tamper proof condition, the accused is entitled to get the benefit of doubt. The trial court failed to appreciate that position.
In the result, the conviction and sentence passed by the trial court under Sec.55(a) and (i) of the Abkari Act is set aside and the accused is acquitted and set at liberty.
NS/15/02/2016
Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge
