Devasya S/o Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942** ## **CRL.A.No.1200 OF 2006** **AGAINST THE JUDGMENT IN SC 88/2001 DATED 28-04-2006 OF ADDITIONAL SESSIONS COURT (ADHOC-II), KALPETTA, WAYANAD** ## **APPELLANT/ACCUSED:** **DEVASYA S/O JOSEPH, KUZHIVELIYIL VEEDU, PALYANA, THARUVANA P.O., MANANTHAVADY, WAYANAD.** **BY ADV. SRI.K.ANTONY JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER -SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2020, THE COURT ON 09-07-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1200/2006 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1200 of 2006 -----------------------------------------Dated this the 9[th] day of July, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C No.88/2001 on the file of the Court of the Additional Sessions Judge, Kalpetta. 2. The prosecution case is that, on 05.03.1999, at about 16.15 hours, PW1 Sub Inspector found the appellant/accused at the public road in front of Rajadhani Jewellery in Mananthavady Town with a shopping bag which contained 70 plastic packets of arrack, each packet having the capacity of 100 ml. 3. The trial court framed charge against the appellant/accused for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. Crl.A.No.1200/2006 3 4. The prosecution examined PW1 to PW6 and marked Exs.P1 to P7 documents and material objects MO1 to MO4. No evidence was adduced by the accused. 5. 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, the accused has filed this appeal. 7. Heard. Perused the records. 8. PW1 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. He has deposed that he saw the accused standing with a shopping bag and on examining the bag, he found 70 plastic packets containing arrack. PW1 has also deposed that he arrested the accused at the spot at 16:20 hours and took three samples of the liquid Crl.A.No.1200/2006 4 contained in nine packets and sealed the sample bottles and affixed label, bearing his signature and signature of the witnesses and the accused, on the sample bottles and seized the articles as per Ext.P2 seizure mahazar. 9. PW2 is the police constable who was in the police party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P5 is the chemical examination certificate received in respect of the samples which were forwarded from the court for analysis. It shows that the three samples of liquid contained ethyl alcohol of different strength. 12. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult to sustain the conviction entered against the appellant by the trial court. The reasons are as follows. Crl.A.No.1200/2006 5 13. The evidence of PW1 is that he arrested the accused at the spot of the occurrence at 16:20 hours on 05.03.1999. Ext.P1 is the arrest memo prepared by PW1 on arresting the accused. The date and time of the arrest of the accused are mentioned in Ext.P1 arrest memo as 05.03.1999 at 16.20 hours. 14. PW1 has deposed that he registered Ext.P3 first information report at the police station. The evidence of PW1 and Ext.P3 first information report show that the case was registered against the accused at 17:45 hours on 05.03.1999. 15. Ext.P1 arrest memo prepared by PW1 on arresting the accused at 16:20 hours on 05.03.1999 bears the crime number of the case which was registered on the same day at 17:45 hours. The prosecution has not explained this anomaly. 16. Presence of the crime number of the case in the arrest memo allegedly prepared by the detecting officer at the spot of the occurrence, in the absence of any satisfactory explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information Crl.A.No.1200/2006 6 report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See **Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134** and **Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48).** When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See **Shyam Bharia v. State of Madhya Pradesh: 2005 Cri.L.J 1907** ). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See **K. Kalyani v. State : MANU/TN/1070/2019** ). Crl.A.No.1200/2006 7 17. There is another lacuna in the prosecution case. The occurrence was on 05.03.1999. Ext.P4 is the property list prepared by PW1 Sub Inspector for producing the material objects before the court. It shows that the properties, including the samples, were produced before the court only on 16.03.1999. There was a delay of 10 days in producing the material objects, including the samples, before the court. 18. PW1 has deposed that he had produced the properties before the court on 09.03.1999 but there was delay in obtaining receipt for it and this fact is recorded in the case diary. There is no record before the court to show that the properties were produced before the court on 09.03.1999. The endorsement of the Magistrate on Ext.P4 property list shows that the properties, including the samples, were produced in the court only on 16.03.1999. PW1 has stated that the properties were in his custody till they were produced before the court. But, PW1 has not satisfactorily explained the reason for the delay in producing the material objects, including the samples, before the court. The delay in producing the samples before the court remains Crl.A.No.1200/2006 8 unexplained. 19. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , has held that law does not mandate production of seized articles forthwith before the court and it enjoins only reporting the seizure forthwith to the court. But, it has also been held that production of the property before the court shall take place without unnecessary delay and if there is delay, it shall be satisfactorily explained. 20. When there is delay in producing the samples of the contraband substance in the court and when the evidence is that they were kept in the police station, the prosecution has to adduce evidence to show as to how and in what conditions the samples were preserved at the police station (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). 21. In the instant case, there is no evidence adduced by the prosecution to show as to how and in what conditions the samples were kept at the police station during the period of ten days till they were produced in the court. Crl.A.No.1200/2006 9 ## 22. In **Hanif Khan @ Annu Khan v. Central Bureau of Narcotics : 2019 SCC OnLine SC 1810** , the Supreme Court has observed as follows: _“The delay in the production of the seized sample coupled with the signature on the seal being illegible, to our mind creates a serious doubt with regard to the prosecution case. There is no credible evidence that the FSL sample produced related to the very same contraband stated to have been seized from the appellant. PW-6 in his cross-examination, did not offer any reasonable explanation why the sample seized from the appellant and deposited in the Malkhana could not be produced in the Court except after a long gap of one year. His explanation that he had several important works can hardly be considered sufficient, if not, any justification for the same. …........... There can hardly be any difference between a case of nonproduction of a sample and the production of a sample doubtful in its identity in being corelated to what was seized from the accused. In both the cases, it will become doubtful if the FSL report is with regard to the very sample seized from an accused.”_ Crl.A.No.1200/2006 10 23. In the absence of any explanation offered by the prosecution regarding the delay in producing the samples before the court and in the absence of any evidence as to how and in what conditions the samples were kept in the police station, tampering of the samples cannot be ruled out and the benefit of that doubt shall go to the accused. 24. There are also other infirmities in the prosecution case. PW1 has given evidence that he had affixed label, bearing his signature and the signature of the accused and the witnesses, on the sample bottles. But, the description of the properties given in Ext.P4 property list does not show that there was any such label on the sample bottles when they were produced before the court. ## 25. In **Vijay Pandey v. State of Uttar Pradesh : AIR** **2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself._ Crl.A.No.1200/2006 11 _In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related"._ 26. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. Crl.A.No.1200/2006 12 27. The trial court has not properly considered the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the accused/appellant by the trial court cannot be sustained. 28. 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. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**