C.D. Babu v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ashok Menon
Judgment Date: 2019-07-12
Court Decision / Holding: The criminal appeal is allowed; the conviction and sentence are set aside and the accused is acquitted. Bail, if any, is cancelled.
Final Disposition: Acquitted; conviction and sentence set aside; accused released; bail, if any, cancelled.

Parties to the Case

Appellants / Petitioners

C.D. Babu

Respondents

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

Legal Representation & Advocates

Counsels for Petitioners

• V. Philip Mathew

Counsels for Respondents

• Public Prosecutor, State of Kerala
• Sr. Public Prosecutor, B. Jayasurya

Case Synopsis & Summary

This is a Kerala High Court Criminal Appeal (CRL.A. No. 411 of 2006) by the accused, C.D. Babu, challenging a conviction under Section 8(1) and (2) of the Abkari Act and a sentence of one year’s rigorous imprisonment and a fine of Rs. 1,00,000 with a default term. The prosecution case, based on a secretarial sequence of events, alleges that on 17 June 1999, Preventive Officers intercepted the accused with a bottle containing 1.5 litres of liquor (arrack). MO-1 was seized and labelled; no sample was drawn at the spot. The specimen was sent for chemical examination and Ext.P7 reported ethyl alcohol. The defence contends the sample tested was not drawn from the contraband seized, and there is no direct linkage between the seized liquor and the sample presented for testing. An apparent inconsistency arises: the cap on the bottle bore a 11.01.2002 manufacturing date, suggesting it could not be the same bottle seized in 1999. The Sessions Court allegedly substituted a cap and explained away defects without corroborating evidence. The Appellate Court notes repeated Kerala authorities that the contraband seized must be the same as that sent for testing, and if there is any doubt, the benefit must go to the accused. Relying on Nalinakshan and Retnakaran, the court ultimately acquits, setting aside the conviction and sentence, and orders liberty to the accused with bail, if any, cancelled.

Provisions of Law Cited

Abkari Act, Section 8(1) and 8(2)

Legal Doctrines & Maxims

Benefit of doubt in favor of the accused

Submissions & Arguments

Contentions of Appellants / Petitioners

The defence contends that the sample sent for chemical examination was not drawn from the contraband liquor seized from the accused, creating a lack of linkage between the seized liquor and the tested sample. The presence of a cap with a manufacturing date of 11.01.2002 on a bottle seized in 1999 is inconsistent, and the mahazar lacks a proper description of the seized bottle. The absence of the specimen seal and lack of testimony by the property clerk regarding seal-matching undermines the chain of custody. Therefore, there is a failure to prove that the contraband subjected to chemical testing is the same as that seized, entitling the accused to acquittal under established jurisprudence (citing Nalinakshan and Retnakaran).

Contentions of Respondents

The prosecution argues the chain of custody and chemical examination corroborate the case: MO-1 bottle seized, Ext.P7 confirms ethyl alcohol, and accompanying documents (Exts. P1–P10) establish the sequence of events from seizure to court. The defense arguments about cap dates are countered by the trial record and witnesses, and the court is urged to uphold the conviction unless there is a fatal defect in link to testing or seal integrity.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Nalinakshan v. State of Kerala	2012(4) KHC 464	Positive	The court relied on the principle from Nalinakshan that when there is doubt whether the seized contraband matches the sample sent for chemical examination, the benefit should go to the accused.
Retnakaran v. State of Kerala and another	2015 (5) KHC 743	Positive	The court relied on Retnakaran for the same principle that, in case of doubt about linkage between seizure and testing, the accused benefits, supporting acquittal.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941** ## **CRL.A.No.411 of 2006** **AGAINST THE ORDER/JUDGMENT IN SC 800/2004 of ADDITIONAL DISTRICT AND SESSIONS (ADHOC) COURT-I, PATHANAMTHITTA** **AGAINST THE ORDER/JUDGMENT IN CP 62/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **C.D.BABU, S/O.DIVAKARAN, CHARIVUPARAMBIL VEEDU, KIDANGANNUR MURI & VILLAGE, KOZHENCHERRY TALUK.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **SR. PUBLIC PROSECUTOR, SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRA 411/2006 -2- ## **J U D G M E N T** This Criminal Appeal is filed by the accused in SC No.800/2004 on the file of the Additional District and Sessions (Adhoc) Court-I, Pathanamthitta, challenging the conviction of the accused under Section 8(1) and (2) of the Abkari Act and sentence there under to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- with default sentence of two years simple imprisonment. 2. The prosecution case in brief is as thus:On 17.6.1999 at about 5.45 p.m., PW1 and PW2, who were Preventive Officers attached to the Pathanamthitta Excise Range were on patrol duty. They apprehended the accused coming along the road with a bottle containing 1½ litres of liquor CRA 411/2006 -3- suspected to be arrack. In the presence of PW3 and PW4 who are independent witnesses, MO-1 bottle containing the alleged contraband arrack was taken into custody. The accused was arrested as per Ext.P2 arrest memo and Ext.P1 mahazar was prepared which was signed by PWs 1 to 4. It is stated that the contraband that was seized was labelled and sealed at the spot, but no sample was drawn. On being produced before the Excise Office, PW5, who was the Excise Range Inspector registered Ext.P3 crime and occurrence report, and together with Ext.P5 property list, Ext.P4 remand application and Ext.P6 requisition for chemical examination, the accused was produced before the jurisdictional Magistrate. It is stated that the sample for chemical examination was taken by the property clerk attached to the JFCM-I, Pathanamthitta and CRA 411/2006 -4- sent for chemical examination. Ext.P7 chemical examination report was received confirming that the sample contained ethyl alcohol. Statements of PWs 3 and 4, the independent witnesses, were recorded as Exts.P8 and P9. Ext.P10 scene mahazar was prepared by the investigating officer and charge laid against the accused. The case was committed to the Court of Sessions and tried. 3. The defence taken up for the accused was that the sample which was sent for chemical examination was not drawn from out of the alleged liquor that was seized from the accused and that there is no link established by the prosecution to prove that the liquor which was seized from the accused was sent for chemical examination. 4. It is pertinent to note that at the time of examination of PW5, it was seen that MO-1 bottle CRA 411/2006 -5- containing the contraband was examined by the court and found that the cap on the bottle contained the details of the manufacturing of the Coco cola with manufacturing date as 11.01.2002. The defence argument is that in case the contraband bottle contained a cap manufactured on 11.01.2002, it could never have been the bottle which was allegedly seized from the accused on 16.7.1999. Interestingly, the learned Sessions Judge had given an explanation stating that the cap having been found not fitting property at the time of drawing of the sample by the property clerk, he would have changed it with a better one. Hence, that is not a reason to disbelieve the prosecution case regarding the genuineness of the contraband. 5. There are a number of decisions of this Court which state that the court has to ensure that CRA 411/2006 -6- the contraband liquor which was seized from the accused is the one which was sent for examination to the chemical examiner. If there is any doubt regarding that, the benefit should go to the accused. The decisions in _**Nalinakshan v. State of Kerla [2012(4) KHC 464]**_ and _**Retnakaran v. State of Kerala and another [2015 (5) KHC 743]**_ are relied upon in this regard. 6. In the instant case, it is seen that Ext.P6 requisition does not contain the specimen of the seal which was allegedly affixed on the contraband, after it was seized from the possession of the accused. The property clerk is not examined to testify regarding the fact that the sample seized matches with the seal on the bottle when it was produced before the court. In the absence of the sample seal, there is nothing available for CRA 411/2006 -7- examination by the property clerk. Hence, it is also not proper on the part of the learned Sessions Judge to have given an explanation for the change in the cap affixed on the bottle all by himself without there being any evidence to that effect. It is also pertinent to note that there is no description of the bottle containing the contraband seized as per Ext.P1 mahazar. The mahazar is supposed to contain the details of the bottle which was seized from the accused. If that be so, the writings on the cap of the bottle would have found a place in the mahazar, which is conspicuously absent. Taking into consideration that the prosecution has miserably failed in establishing that the contraband that was seized from the accused was the one sent for examination by the chemical examiner, the benefit should go to the CRA 411/2006 -8- accused and he is entitled to be acquitted. In the result, the criminal appeal is allowed and the conviction and sentence ordered vide the impugned judgment are set aside and the accused is acquitted. He is set at liberty, in case he is not required in connection with any other case. The bail bond if any executed by the accused shall stand cancelled. ## **Sd/-** **ASHOK MENON** **JUDGE** jg