Devarajan 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.2490 OF 2007** **AGAINST THE ORDER OF CONVICTION ADN SENTENCE PASSED IN SC.NO.430/2001 DATED 22-11-2007 OF ADDITIONAL SESSIONS COURT (ABKARI CASES), KOTTARAKKARA** ## **APPELLANT/ACCUSED:** **DEVARAJAN, S/O. SAHADEVAN, NADAYATHU MELATHIL, NEAR TEMPLE, VILAKKUVATTOM WARD, VALACODU VILLAGE, KOLLAM DISTRICT.** **BY ADV. SRI.K.V.ANIL KUMAR** ## **RESPONDENT/COMPLAINT:** **STATE OF KERALA** **REP. BY THE PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **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.2490/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.2490 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.430/2001 on the file of the Court of the Additional Sessions Judge, Kottarakkara. 2. The prosecution case is that, on 24.01.1999, at about 17.35 hours, inside a plantain cultivation on the southern side of the road near Vilakkuvattom Junction, PW2 Sub Inspector found the appellant/accused engaged in the sale of arrack and that the accused was found in possession of a plastic bottle containing one litre of arrack and a drinking glass. Crl.A.No.2490/2007 3 3. The trial court framed charge against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the offences and he claimed to be tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P6 documents and MO1 and MO2 material objects. DW1 was examined on the side of the accused. 5. The trial court found the accused not guilty of the offence punishable under Section 55(i) of the Abkari Act and acquitted him of that offence. The trial court found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year 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 three months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court under Section 55(a) of the Abkari Act, the accused has filed this appeal. 7. Heard. Perused the records. Crl.A.No.2490/2007 4 8. PW2 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW1 was the police constable who was in the police party led by PW2. His evidence corroborates the testimony of PW2 with regard to the material particulars of the occurrence. 9. PW4 is the independent witness examined by the prosecution. He has not given any evidence with regard to the seizure of any plastic bottle containing arrack from the possession of the accused. 10. PW3 is the Head Constable who conducted the investigation of the case. PW5 is the Sub Inspector who verified the investigation conducted by PW3 and filed final report against the accused. 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 32.72% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult Crl.A.No.2490/2007 5 to sustain the conviction entered against the appellant by the trial court. The reasons are as follows. 13. PW2 Sub Inspector has given evidence that he seized a plastic bottle containing arrack from the possession of the accused. He has not given any evidence that sample of the liquid from the plastic bottle was taken at the spot of the occurrence. He has given evidence in examination-in-chief that he produced the material objects in the court on 24.01.1999 as per Ext.P4 property list. He has also stated that, as it was a holiday, the properties were returned to him and that he kept them. However, on cross-examination he has stated that the properties were not produced before the court on 24.01.1999 as it was a holiday. 14. Ext.P4 is the property list prepared by PW2 Sub Inspector for producing the material objects before the court. It bears the endorsement made by the Magistrate concerned giving direction to verify and receive the properties. This endorsement is dated 03.02.1999. Therefore, there can be no doubt with regard to the fact that the plastic bottle containing the liquid was Crl.A.No.2490/2007 6 produced before the court only on 03.02.1999 and not on any day before that date. 15. PW2 Sub Inspector has not given any explanation for the delay that occurred in producing the contraband substance before the court. There is also no evidence as to how and in what condition the plastic bottle containing the liquid was kept in the police station till it was produced before the court on 03.02.1999. 16. 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. 17. 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 Crl.A.No.2490/2007 7 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 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. 18. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating officer for sending the sample for chemical examination was not marked in the case. 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 from the liquid seized from the possession of the accused had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD** Crl.A.No.2490/2007 8 **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 from the liquid which was seized from the possession of the accused. 19. There is also no evidence as to who had drawn the sample of liquid from the plastic bottle which was produced before the court. The property clerk of the Magistrate's Court concerned was not examined by the prosecution to prove that the sample was drawn in that court. There is no record relating to the drawing of sample by any person from the liquid contained in the plastic bottle which was produced before the court as per Ext. P4 property list. 20. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, conviction entered against the appellant/accused cannot be sustained. Crl.A.No.2490/2007 9 21. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence 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. **==> picture [39 x 13] intentionally omitted <==** ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge