Damodharan Nambiar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** ## **CRL.A.No.2486 OF 2007** **AGAINST THE ORDER IN SC 99/2002 DATED 04-12-2007 OF ADDITIONAL SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA** ## **APPELLANT/ACCUSED:** **DAMODHARAN NAMBIAR S/O.NARAYANAN NAMBIAR, PULIPARA KUZHIYIL VEEDU, POOVATOOR, KIZHAKKEMURI, KULAKKADA VILLAGE,, KOTTARAKKARA.** **BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SUB INSPECTOR OF POLICE, KOTTARAKARA POLICE STATION, KOLLAM DISTRICT.** ## **R1-2 BY PUBLIC PROSECUTOR SRI.SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.08.2020, THE COURT ON 17.08.2020 DELIVERED THE FOLLOWING:** Crl.A.No.2486/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.2486 of 2007 -----------------------------------------------Dated this the 17[th] day of August, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.99/2002 on the file of the Court of the Additional Sessions Judge, Kottarakkara. 2. The prosecution case is that, on 12.11.1999, at about 19.15 hours, in the rubber plantation owned by one Narayana Pillai at the place Ambalavila, PW3 Circle Inspector found the appellant/accused in possession of a can containing seven litres of arrack. 3. The trial court framed charge against the accused for the offences punishable under Sections 55(a) and 8(1) read with Crl.A.No.2486/2007 3 8(2) of the Abkari Act. The accused pleaded not guilty to the offences and he claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P5 documents and MO1 to MO3 material objects. DW1 was examined on the side of the accused. 5. The trial court found the accused guilty under Section 55(a) read with 8(1) and 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW3 is the Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 was the police constable who was in the police party led by PW3. Crl.A.No.2486/2007 4 His evidence corroborates the testimony of PW3 with regard to the material particulars of the occurrence. 9. PW1 is the independent witness examined by the prosecution. No attempt was made by the learned Public Prosecutor who conducted the case before the trial court to bring out in evidence whether PW1 had seen the incident or not. Not even a question was put to PW1 with regard to the occurrence. PW1 has given evidence only to the effect that he signed Ext.P1 mahazar which was prepared by the police on 12.11.1999. 10. PW4 is the Sub Inspector who conducted the investigation of the case. He has given evidence that he produced the accused before the court on 13.11.1999 and that he produced the material objects in the court as per Ext.P4 property list. He has also given evidence that he had submitted requisition (forwarding note) for sending the sample for chemical analysis. 11. Ext.P5 is the chemical analysis report received in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 36.78% by volume of Crl.A.No.2486/2007 5 ethyl alcohol. 12. Learned counsel for the appellant contended that there was undue delay in producing the material objects, including the sample, before the court and that the delay has not been explained by the prosecution. Learned counsel has further contended that the forwarding note allegedly prepared by the investigating officer for sending the sample for analysis was not marked in evidence and there is no evidence to find that the very same sample allegedly drawn by PW3 at the spot of the occurrence was produced before the court and the very same sample was forwarded for analysis and that Ext.P5 chemical examination report relates to that sample. 13. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find that there is merit in the contentions of the learned counsel for the appellant and that the conviction entered against the appellant cannot be sustained. The reasons are as follows. 14. PW3 has given evidence that he seized a can containing seven litres of arrack from the possession of the Crl.A.No.2486/2007 6 accused and that he took two samples of the liquid from the can and that he sealed the sample bottles and affixed label on them. PW3 has also given evidence that he produced the accused and the articles seized by him at the police station. PW4 Sub Inspector has given evidence that he produced the material objects in the court as per Ext.P4 property list. He would say that the properties were received by the court on 24.11.1999 and till that time, they were kept in his safe custody. 15. Ext.P4 property list shows that the material objects, including the two samples, were produced before the court only on 24.11.1999. Ext.P4 property list bears the endorsement made by the Magistrate concerned giving direction to verify and receive the properties. This endorsement is dated 24.11.1999. 16. PW4 has stated on cross-examination that he had prepared the property list on 12.11.1999 itself and he had given direction for producing the properties before the court along with the accused. However, he has not given any evidence that even before the date 24.11.1999 he had produced the material objects before the court but they were returned from the court for any Crl.A.No.2486/2007 7 reason and that the properties were re-submitted only on 24.11.1999. PW4 has not given any evidence as to the person to whom he had given direction for production of the properties before the court. PW4 would say that he could not state where the properties were kept till the date 24.11.1999. 17. Decisions are umpteen which hold that inordinate and unexplained delay in producing the samples of the contraband substance before the court creates suspicion that the samples have been tampered with. Possibility of tampering or meddling with the samples cannot be ruled out in such cases. 18. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that 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. It was held that what is required by the statute is only that the Crl.A.No.2486/2007 8 seizure of the property should be reported forthwith to the court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 19. In the instant case, the prosecution has not explained the reason for the delay that occurred in producing the material objects, including the samples, before the court. PW4 Sub Inspector has not given any satisfactory explanation for the delay. 20. PW4 has stated that the properties were in his safe custody. But, he has not been able to say where they were kept. When there is delay in producing the samples of the contraband substance in the court, the prosecution has to adduce evidence to show as to how and in what conditions the samples were preserved (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). 21. PW4 has given evidence that he had prepared requisition (forwarding note) for sending the samples for Crl.A.No.2486/2007 9 chemical analysis and submitted it before the court. No such requisition or forwarding note allegedly prepared by PW4 was marked in evidence. 22. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). Absence of forwarding note in evidence means absence of evidence connecting the sample tested in the laboratory and the sample allegedly drawn at the spot of the occurrence. 23. 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. Crl.A.No.2486/2007 10 (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 24. The trial court has not properly taken into consideration the effect of the delay in producing the sample before the court. In such circumstances, conviction entered against the appellant/accused cannot be sustained. 25. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Sections 55(a) and 8(1) read with 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offences and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy PS to Judge**