Chemban Balakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **CRL.A NO. 905 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 566/2005 OF ADDITIONAL DISTRICT** **COURT (ADHOC), THALASSERY, KANNUR** ## **APPELLANT/ACCUSED NO.2:** CHEMBAN BALAKRISHNAN S/O. ANDI, CHEMBAN HOUSE, MANATHANA AMSOM, PERAVOOR THERU, PERAVOOR. BY ADV SUNNY MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA THROUGH THE ADDITIONAL SUB INSPECTOR OF POLICE, KUTHUPARAMBA POLICE STATION, REP. BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.905 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.905 of 2007** --------------------------------------Dated this the 10[th] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 27-04-2007, passed by the learned Additional Sessions Judge (Adhoc-I), Thalassery in S.C No.566/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 21-09-2003 at 4.00 p.m, the appellant (A2) and the other accused (A1) were found transporting 40 bottles of Indian Made Foreign liquor, each containing 180 ml, in an Autorickshaw bearing registration No.KL-11-H-2285. The offence was detected at Ukkasmotta in Kadiroor amsom by the additional S.I of Police, Kadiroor. 4. After completion of the investigation, the final report was submitted against the accused for the Crl.A No.905 of 2007 3 offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Thalassery. The case was committed to the Sessions Court, Thalassery from where it was made over to the trial Court. On the appearance of the accused charges were framed against them for the offence punishable under Section 55(a) of the Abkari Act. Both the accused pleaded not guilty to the charge levelled against them and therefore, they came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P9. 6. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, ## Crl.A No.905 of 2007 4 they may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the appellant/accused No.2 is guilty of offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused No.1 was acquitted of the charge. The appellant/accused No.2 was sentenced to undergo simple imprisonment for a term of 3 months and to pay a fine of Rs.1 Lakh. 7. Heard Sri.Sunny Mathew, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction and sentence. (i) The inordinate delay in the production of the properties including the sample before the court has not been satisfactorily explained. (ii) The prosecution failed to establish that the Crl.A No.905 of 2007 5 contraband substance allegedly seized from the place of occurrence was subjected to chemical analysis at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW1, the detecting officer, has given evidence that on 21-09-2003 while he was on patrol duty they intercepted an autorickshaw at Ukkasmotta. On inspection PW1 found a packet containing 40 bottles of Indian Made Foreign Liquor in the possession of the appellant/accused No.2. Accused No.1 was driving the autorikshaw. Both the accused were arrested. The Crl.A No.905 of 2007 6 contraband substance was seized as per Ext.P3 seizure mahazar. PW1 collected 3 bottles to be utilised as samples and sealed the same. PW3, the Head constable who had accompanied PW1, supported the prosecution case. PW2 was the registered owner of the vehicle involved. PW4 conducted part of the investigation. PW5 completed the investigation and submitted the final report. PWs 6 and 7, the independent witnesses, did not support the prosecution case. 12. The learned counsel for the appellant contended that the delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. PW5 gave evidence that the properties including the sample were forwarded to the court as per Ext.P7 forwarding note. Exhibit P7 would show that, the properties reached the court only on 09-10-2003. The delay in the production of the properties has not been satisfactorily explained by the prosecution. 7 Crl.A No.905 of 2007 13. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held as follows: _“8. We, therefore, answer the reference as follows:_ _1. 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 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)_ The Division Bench held that the production of the property should take place without 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 explanation for the delayed production of the property. Unexplained delay in the production of the bottles containing the sample would lead to the conclusion that tampering with the samples could not be ruled out. 14. The learned counsel for the appellant further 8 Crl.A No.905 of 2007 contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. He relied on the following circumstances to establish his contentions. - (a) There is no evidence regarding the nature and description of the seal affixed on the bottles containing the sample. - (b) The specimen impression of the seal had not been produced before the court and forwarded to the Chemical Examiner. 15. The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. Exhibit P3, seizure mahazar, is silent regarding the nature of the seal used. 16. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ - [2019 KHC 191] this Court held that the detecting Crl.A No.905 of 2007 9 officer who drew the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample and nature of the seal used shall be mentioned in the seizure mahazar. It was further held that the specimen of the seal shall be provided in the seizure mahazar, so as to enable the court to satisfy the genuineness of the sample produced in the court. 17. The prosecution has failed to adduce evidence to establish that the specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner. Exhibit P7, the copy of the forwarding note, does not contain any mention about the nature of the seal used and the impression of the seal stated to have been affixed on the samples. So the necessary inference is that, there is no convincing evidence to show that the specimen impression of the seal used had been forwarded to the Chemical Examiner. In _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)], while considering a similar fact situation this Court Crl.A No.905 of 2007 10 ## held thus: _“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 PW.1 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 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.”_ ## 18. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P8, certificate of chemical analysis. 19. PW5 gave evidence that he had sent the articles including the samples to the court as per Ext.P7 forwarding note. He was unable to mention the name of the police official with whom the properties including the samples were forwarded to the court. In Crl.A No.905 of 2007 11 Ext.P7 there is no mention of the name of the police official who received the bottles containing the sample from the court. Exhibit P8 would show that the bottles containing the sample were delivered to the Chemical Examiner's laboratory through a police constable No.4293. The samples also remained in the custody of the property clerk of the court. 20. The admitted case of the prosecution is that the samples changed different hands before it reached the hands of the Analyst. In other words, the samples remained in the custody of the police official who produced the same before the court, the property clerk of the court and the police constable No.4293 who handed over the samples to the Assistant Chemical Examiner. None of these officials were examined to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered 12 Crl.A No.905 of 2007 with during the period-a fact which had to be proved affirmatively by the prosecution (Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314]. 21. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that 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 samples which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 23. In the instant case, the prosecution was unable to establish the link connecting the accused Crl.A No.905 of 2007 13 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 as discussed above. 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 guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS