Crl.A No. 1488 of 2009

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 CRL.A NO. 1488 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 14.07.2009 IN SC NO.137 OF 2007 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA ``` ``` APPELLANT/S: ``` ``` ULLAS THEKKEMUTTATHUKONAM, CHENNEERKARA MURI & VILLAGE. ``` ``` BY ADVS. SRI.PHILIP M.VARUGHESE SRI.AMRIT RAJ BABY ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1488 of 2009 2 ## **K. BABU, J** ------------------------------------------------- **Crl Appeal No. 1488 of 2009** ------------------------------------------------Dated this the 12[th] day of April, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 14.07.2007, passed by the Additional District & Sessions Court (Adhoc), Fast Track Court-III, Pathanamthitta in S.C.No. 137/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one and half years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 06.07.2002 at 07.15 pm, the accused was found in possession of 5 litres of spirit at Pandalam in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence Crl.A.No.1488 of 2009 3 punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 4 and proved Exts.P1 to P9, MOs.1 to 5 and MO6 series. 5. After the closure of evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under 4 Crl.A.No.1488 of 2009 Section 55(a) of the Abkari Act and convicted him thereunder. 6. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. Crl.A.No.1488 of 2009 5 9. The alleged seizure was effected on 06.07.2002. Ext.P1 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. Ext.P1 does not contain the specimen of the seal used by the detecting officer. He has also not produced the specimen of the seal before the Court at the time of production of properties before the Court and has not given evidence as to the nature of the seal used. 10. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. Ext.P5 property list shows that the properties including the sample were produced before the Court only on 10.07.2002. There is no convincing material to show that the sample was produced before the Magistrate on 06.07.2002 itself. The prosecution has not Crl.A.No.1488 of 2009 6 offered any satisfactory explanation to the delay in the production of properties including the sample before the Court. 12. **In Ravi v. State of Kerala [2011 (3) KHC 353]** , 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) 13. In **Ravi's case** (supra) the Division Bench held that production of the property before the court should Crl.A.No.1488 of 2009 7 take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 14. There is no satisfactory explanation for the delay in the production of properties before the court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 15. In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 16. 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. 8 Crl.A.No.1488 of 2009 The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The amount, if any, deposited by the appellant shall be disbursed to him as per law. The appeal is allowed as above. **K. BABU JUDGE** kkj