Cheriyankadavan Kunjiraman Sudakaran and Kattan Babu @ Karatte Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** **CRL.A NO. 2134 OF 2006** **AGAINST THE JUDGMENT IN SC 901/2004 OF ADDITIONAL SESSIONS COURT (ADHOC I), THALASSERY, KANNUR** ## **APPELLANT/S:** 1 CHERIYANKADAVAN KUNJIRAMAN SUDAKARAN S/O. KUNJIRAMAN, THOLAMBRA AMSOM, NITTARAMBU, LEKSHAM VEEDU COLONY, THALASSERY TALUK. 2 KATTAN BABU @ KARATTE BABU S/O. KATTAN, THOLAMBRA AMSOM, NITTARAMBU, LEKSHAM VEEDU COLONY, THALASSERY TALUK. BY ADVS. SRI.P.NARAYANAN P.SHEEBA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI. M.C. ASHI THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 2134 OF 2006 2 **K.BABU, J. ======================= Crl.A.No.2134 of 2006 =======================** Dated this the 9[th] August, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 22.9.2006 in S.C.No.901/2004 of the Additional Sessions Court (Adhoc-I), Thalassery. The two accused were convicted of the offence punishable under Section 55(g) of the Abkari Act by the trial court. 2. The prosecution case is that on 16.4.2003, the two accused were found in possession of 1300 litres of wash on the bank of a river at Neetaramb in Tholambra amsom. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Court, Kuthuparamba. The case was committed to the Sessions Court, Thalassery from where it was made over to the Additional Sessions Court, Thalassery. On appearance of CRL.A NO. 2134 OF 2006 3 the accused, charge was framed against them for offence punishable under Section 55(g) of the Abkari Act. Both the accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P5 and MOsI to III. 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 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 they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused are guilty of offence under Section 55(g) of the Abkari Act and they were convicted thereunder. They were sentenced to undergo imprisonment for a term of two months each and to pay a fine of Rs.1,00,000/each. 7. Heard Smt.Sheeba.P, the learned counsel appearing for the appellants/accused and Sri.M.C.Ashi, the learned CRL.A NO. 2134 OF 2006 4 Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants canvassed the following grounds to challenge the judgment of conviction and sentence: a) The delay in the production of the properties has not been satisfactorily explained by the prosecution. b) The prosecution has not succeeded in establishing that the contraband substance, allegedly seized from the place of occurrence, was eventually subjected to analysis at the Chemical Examiner's laboratory. c) The investigation in this case was conducted by an incompetent officer. 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 are sustainable or not. CRL.A NO. 2134 OF 2006 5 ## **THE POINT** 11. PW2, the Sub Inspector of Police, Maloor Police Station on 16.4.2003 detected the offence. PW2 has given evidence that on getting reliable information that the accused were engaged in distilling arrack, they proceeded to the place of occurrence which is on the bank of a river. The police team found the accused engaged in distilling arrack. On seeing the police party, the accused ran away from the scene and hence they could not be apprehended. PW2 seized 1300 litres of wash found in 15 cans. PW2 collected 375 ml of wash as sample in a bottle and the residue was destroyed at the scene itself. PW2 prepared Ext.P1 seizure mahazar. PWs 1 and 3, the independent witnesses, did not support the prosecution. PW4 conducted investigation and submitted final report before the court. 12. The learned counsel for the appellants submitted that the delay in the production of the property has not been satisfactorily explained by the prosecution. The seizure was effected on 16.4.2003. PW2 has given evidence that the properties were produced before the court on 26.4.2003. The explanation given by PW4 for the delay in the production of CRL.A NO. 2134 OF 2006 6 the properties was that he was busy with the official work. He added that the properties were in his safe custody. The explanation offered by PW2 is no way satisfactory. 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 property before the court 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 satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 14. The learned counsel for the appellants further CRL.A NO. 2134 OF 2006 7 contended that the prosecution failed to establish that the contraband substance, allegedly seized from the place of occurrence, eventually reached the hands of Chemical Examiner. The learned counsel relied on the following circumstances to substantiate his contentions: a) The detecting officer has not given evidence as to the nature and description of the seal, that he affixed on the bottle containing the sample. b) Ext.P1 seizure mahazar is silent regarding the nature and description of the seal affixed on the bottle containing the sample. c) There is no convincing evidence to show that the specimen impression of the seal was produced before the court and forwarded to the Chemical Examiner's laboratory. 15. The oral evidence of the detecting officer (PW2) is silent regarding the nature and description of the seal affixed on the bottle containing the sample. 16. Ext.P1 seizure mahazar does not contain the nature of the seal used by the detecting officer. The detecting CRL.A NO. 2134 OF 2006 8 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. The specimen of the seal shall be produced in the court. [vide: **Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)], Achuthan v. State of Kerala (ILR 2016(2) Ker. 145)** 17. Ext.P3 is the copy of the forwarding note. Ext.P3 does not contain the name of the person with whom the sample was sent to the Chemical Examiner's laboratory. The specimen impression of the seal stated to have been affixed by the detecting officer at the scene of occurrence is not found in Ext.P3. There is no convincing evidence to show that the specimen impression of the seal was produced before the court and forwarded to the Chemical Examiner. While dealing with a similar fact situation, this Court in **Rajamma v. State of Kerala (2014(1) KLT 506)** 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 CRL.A NO. 2134 OF 2006 9 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 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 the instant case, there is absolutely no evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner for comparison. Ext.P5 contains the certification that the seals on the bottle were intact and found tallied with the sample seal provided. In the absence of any evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner, the said certification cannot be accepted. The resultant conclusion is that no sanctity can be attached to Ext.P5 certificate of Chemical Analysis. 19. As discussed above, there was a delay of almost 10 days in the production of the properties including the sample before the court. The list of properties sent to the CRL.A NO. 2134 OF 2006 10 Magistrate has not been marked in evidence. This Court is kept in the dark as to who produced the articles including the sample before the court. The prosecution has not given evidence as to the name of the official who received the sample from the court for delivering the same to the Chemical Examiner's laboratory. Ext.P5 would show that Police Constable No.3259 delivered the sample to the Chemical Examiner's laboratory. The admitted case of the prosecution is that the sample changed several hands before it reached the Chemical Examiner's laboratory. The sample remained in the custody of the property clerk, the official who received the sample from the court and the police official who delivered the same to the Chemical Examiner's laboratory. The prosecution ought to have examined all these witnesses to establish that the sample remained tamper-proof while in their custody. While dealing with a similar fact situation in **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314],** the Apex Court held that where the sample changed several hands before it reached the Chemical Examiner's laboratory, the prosecution has to prove by examining the officials concerned to rule out the possibility of tampering of the seal on the bottle CRL.A NO. 2134 OF 2006 11 containing the sample. The inevitable consequence of this omission is that the prosecution failed to establish the tamper proof despatch of the sample from the court to the laboratory. 20. It is trite that mere production of a 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. (See **Vijay Pandey v. State of U.P (AIR 2019 SC 3569).** 21. 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. 22. The learned counsel for the appellants further contended that going by the records, the offence was committed within the territorial jurisdiction of Maloor Police Station. But after detection of the offence, the investigation was conducted by the Sub Inspector of Police, Kelakam. The learned counsel contended that the Sub Inspector of Police, Kelakam, PW4, cannot be treated as an abkari officer as per CRL.A NO. 2134 OF 2006 12 Section 4 of the Abkari Act, as far as the offence which was allegedly committed within the jurisdiction of Maloor Police Station. The learned counsel relied on **Narayanankutty v. State of Kerala (2015(1) KHC 702)** to substantiate her contentions. The learned counsel relied on G.0(P) No.69/96/TD dated 29.3.1996 as per which the Government of Kerala appointed all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order when working in the general executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be abkari officers under their respective jurisdiction for the purpose of exercising powers under various sections of the Abkari Act. The learned counsel submitted that PW4 can exercise the powers under the relevant provisions of the Abkari Act only within the territorial jurisdiction of Kelakam Police Station whereas the offence was committed outside the jurisdiction of that Police Station. I find force in the submission of the learned counsel for the appellant. 23. 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 CRL.A NO. 2134 OF 2006 13 appellants/accused are therefore not guilty of the offence punishable under Section 55(g) of the Abkari Act and they are acquitted of the charge. The appellants are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU** **JUDGE** ab