C. Kunhiraman v. Sub Inspector of Police, Ulikkal & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943 CRL.A NO. 835 OF 2007** **AGAINST THE JUDGMENT IN SC 542/2005 OF ADDITIONAL SESSIONS** **COURT (ADHOC), THALASSERY, KANNUR** **APPELLANT/ACCUSES:** **C.KUNHIRAMAN S/O. KUNHAMBU, CHAPPLI HOUSE, VAYATHU AMSOM, KALANKI, KARIMBALA COLONY** . BY ADV CIBI THOMAS ## **RESPONDENTS:** 1 **SUB INSPECTOR OF POLICE, ULIKKAL.** 2 **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.C. ASHI** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 835 OF 2007 2 **K.BABU, J. ===================== Crl.A.No.835 of 2007 =====================** Dated this the 11[th] August, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 24.4.2007 in S.C.No.542/2005 of the Additional Sessions Court, Adhoc I, Thalassery. The accused was convicted of the offences punishable under Sections 55(a) and 55(g) of the Abkari Act by the impugned judgment. 2. The prosecution case is that on 21.3.2004 at 3 pm the accused was found distilling arrack on the rear side of the courtyard of the residence of the accused. The Sub Inspector of Police, Ulikkal Police Station detected the offence. 3. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(g) of the Abkari Act before the Judicial First Class Magistrate Court, Mattannur. The case was CRL.A NO. 835 OF 2007 3 committed to the Sessions Court, Thalassery from where it was made over to the Additional Sessions Court, Thalassery. On appearance of the accused, charges were framed against him for offences punishable under Sections 55(a) and 55(g) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5 and Exts.P1 to P9. 5. 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 total 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 learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offences punishable under Sections 55(a) and 55(g) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a term of one month and to pay a fine of Rs.1,00,000/- under Section 55(g) of the Abkari Act. No separate sentence was imposed under CRL.A NO. 835 OF 2007 4 Section 55(a) of the Abkari Act. 6. Heard Sri.Cibi Thomas, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction: a) The delay in the production of the sample and other articles before the court has not been satisfactorily explained. b) The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the hands of the analyst in the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. He contended that sufficient materials are there to establish the prosecution case. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. CRL.A NO. 835 OF 2007 5 ## **THE POINT** 10. PW1, the Sub Inspector of Police, Ulikkal Police Station gave evidence that on 21.3.2004 while he was on patrol duty, on getting reliable information that the accused was engaged in distilling of arrack in his house, the police party led by him proceeded to there. PW1 found the accused in possession of the contraband substance that includes 15 litres of wash and 1½ litres of arrack in two bottles. PW1 seized the contraband substance as per Ext.P3 seizure mahazar. The accused was arrested from the spot. 11. PWs 2 and 3, the independent witnesses, did not support the prosecution. PW4, the Police Constable who had accompanied PW1 in the search and seizure, supported the case of the prosecution. PW5 conducted investigation and submitted final report. 12. The learned counsel for the appellant contended that the delay in the production of the articles before the court has not been satisfactorily explained by the prosecution. PW1, admitted that the properties seized on 21.3.2004 reached the court only on 26.3.2004. The explanation for the delay in the production of the articles is that they were in his safe custody. CRL.A NO. 835 OF 2007 6 PW1 added that on the date of seizure itself, the properties were forwarded to the court. But the properties were verified and received in the court only on 26.3.2004. No material is available to convince that the properties were produced before the court on the date of seizure itself. The case of PW1 is that he had sent the articles to the court. He was even unable to mention the name of the official with whom the properties were forwarded to the court. The explanation offered by the detecting officer is not acceptable. This Court has no hesitation to hold that the properties including the sample were produced before the court only on 26.3.2004. 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) 13. The Division Bench held that production of the properties before the court should take place without CRL.A NO. 835 OF 2007 7 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 properties. The unexplained delay in the production of the properties would lead us to the conclusion that tampering with the samples could not be ruled out. 14. The learned counsel for the appellant further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence was actually subjected to analysis in the laboratory. The learned counsel for the appellant relied on the following aspects to substantiate his contentions: i) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. ii) Ext.P3 seizure mahazar is silent about the nature of the seal used. iii) PWs 1 and 4, the official witnesses examined to prove the incident proper, did not testify as to the nature and description of the seal affixed on the bottle containing the sample. CRL.A NO. 835 OF 2007 8 iv) Ext.P3 seizure mahazar does not contain the nature of the seal used by the detecting officer. There is nothing to convince the court that the specimen impression of the seal had been produced before the court at the time of production of properties before the court. 15. 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. (See: **Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v.** ## **State of Kerala (2019 KHC 191).** 16. In the instant case, the detecting officer (PW1) failed to give evidence regarding the nature of the seal affixed on the bottle containing the sample. Ext.P3 seizure mahazar does not contain the description of the seal used. 17. Ext.P5, the copy of the forwarding note, contains two specimen seals. One is not at all legible. Ext.P5 was prepared on 15.4.2004 and produced before the court on 17.4.2004. As the specimen impression of the seal was not placed before the CRL.A NO. 835 OF 2007 9 court at the time of production of the sample, the official concerned of the court or the learned Magistrate had no opportunity to ascertain the genuineness of the sample produced before the court. 18. Ext.P7, the certificate of chemical analysis would show that three bottles containing the sample were received in the laboratory on 28.4.2004. There is no convincing evidence as to the date on which the samples were forwarded to the Chemical Examiner's laboratory. The name of the official with whom the samples were forwarded is not mentioned in any of the contemporaneous documents. 19. It has come out in evidence that the detecting officer was unable to ascertain the name of the police official with whom the bottles containing the sample were forwarded to the court. His evidence was in the line that he had sent the samples to the court immediately after the seizure. But the sample reached the court only on 26.3.2004. The necessary inference from the evidence of the detecting officer is that the custody of the bottles containing the sample during the interregnum remains unexplained. It is the admitted case of the prosecution that the bottles containing the sample changed several hands CRL.A NO. 835 OF 2007 10 before they reached the laboratory. The samples remained in the custody of the police official who produced them in the court, the property clerk of the court and the police official who delivered them in the laboratory. These witnesses were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with. (See: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]** . 20. In view of the fact that there is no evidence to convince the court that the samples were sent to the laboratory in a tamper-proof condition, no sanctity can be attached to Ext.P7 certificate of chemical analysis. 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 CRL.A NO. 835 OF 2007 11 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].** 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. 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 found guilty of the offences punishable under Sections 55(a) and 55(g) of the Abkari Act. In the result, - (i) the appeal is allowed. - (ii) The judgment of conviction and sentence passed in S.C.No.542/2005 by the Additional Sessions Judge, Thalassery is set aside. - (iii) The accused is acquitted of the offences CRL.A NO. 835 OF 2007 12 punishable under Sections 55(a) and 55(g) of the Abkari Act. (iv) The accused is set at liberty. **Sd/-** **K. BABU JUDGE** ab