Dravyan and Biju S. Sidharadhan Ayinippully v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944** **CRL.A NO. 2972 OF 2008** **AGAINST THE JUDGMENT IN SC 447/2003 OF ADDITIONAL SESSIONS COURT** **(ADHOC) III, PALAKKAD** ## **APPELLANTS/ACCUSED NOS. 1 & 2:** 1 DRAVYAN , S/O RAMANKUTTY, KAREKUNNATHU VEEDU, NADUVATTOM, THIRUVEGAPPURA. 2 BIJU SO.SIDHARADHAN AYINIPPULLY VEEDU, IRINGAPPURAM, GURUVAYOOR. BY ADV NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY ADDL. SUB INSPECTOR OF POLICE, PATTAMBI POLICE STATION, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal. 2972/2008 2 ## **JUDGMENT** Dated this the 12[th] day of July, 2022 This appeal arises from the judgment dated 16.12.2008 passed by the Additional Sessions Court, Ad hoc-III, Palakkad in S.C. No. 447 of 2003. Accused Nos. 1 and 2 are the appellants. They have been convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years each and pay a fine of Rs.1,00,000/each. 2. The prosecution case is that on 13.04.2002 at about 1.45 a.m., the appellants (accused Nos. 1 and 2), and the other accused were found transporting 495 litres of spirit in 17 cans in the jeep bearing No. KL-10/G 9055 at Parakkad. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 279 and 337 of IPC, Section 132 read with Section 179 of Motor Vehicles Act and Section 55(a) of the Crl.Appeal. 2972/2008 3 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, charges were framed against them for the offences punishable under Section 55(a) of the Abkari Act, Sections 279 and 337 of the Indian Penal Code, Section 132 read with Section 179 of the Motor Vehicles Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. Subsequently the 3[rd] accused absconded and accused Nos. 1 and 2 faced trial. 4. The prosecution examined P.Ws. 1 to 10 and proved Exts.P1 to P8 series, P9 to P12 and M.O.1 series. 5. After the closure of the prosecution evidence, statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. They pleaded not guilty. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The trial court, after hearing Crl.Appeal. 2972/2008 4 the arguments on both sides and considering the evidence, found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder. The trial Court acquitted the appellants for the offences punishable under Sections 279 and 337 of Indian Penal Code and Section 132 read with Section 179 of the Motor Vehicles Act. 6. Heard Sri. Nireesh Mathew, the learned counsel appearing for the appellants and Sri. Rekha S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: a) The prosecution failed to establish that the sample drawn from the contraband substance allegedly recovered from the possession of the accused was the one which eventually reached the Chemical Examiner's Laboratory. b) A part of the investigation was conducted by an incompetent officer leading to the vitiation of the entire Crl.Appeal. 2972/2008 5 prosecution case. 8. The learned counsel for the appellants also relied on the following circumstances to substantiate the contention that the contraband seized at the scene of occurrence eventually reached the hands of the Chemical Analyst. (i) Ext. P1 seizure mahazar, the contemporaneous document prepared at the scene of occurrence does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) The detecting officer has not given evidence as to the nature of the seal used. (iii) There is inordinate delay in the production of the properties including the sample before the Court. (iv) The various officials who handled the sample during the transit of the same from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 13.04.2022. The properties including the sample were produced before the Crl.Appeal. 2972/2008 6 Court only on 18.04.2022. The prosecution has not offered any explanation for the delay in the production of the properties including the sample before the Court. 10. In **Ravi** v. **State of Kerala** (2011 (3) KHC 121), on the question of delay in production of properties, a Division Bench of this Court held thus: - “8. We, therefore, answer the reference as follows: 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.” In _**Ravi's case**_ (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. Crl.Appeal. 2972/2008 7 11. 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. 12. Ext. P1 seizure mahazer does not contain the nature and description of the seal said to have been affixed on the bottles containing the samples. The detecting officer has also not given evidence as to the nature of the seal used. 13. 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. 14. The samples remained in the custody of the property clerk till 08.10.2002. Ext. P11 Certificate of Chemical Analysis shows that the bottles containing the sample were delivered in the laboratory on 09.10.2022 by Police Constable No. 3257. Those officials were not examined by the prosecution Crl.Appeal. 2972/2008 8 to rule out the possibility of the sample being changed or tampered with. The non-examination of those officials is highly relevant in view of the fact that the Analyst only stated that the seals on the packets containing the bottles were only verified. Therefore, the prosecution failed to show that the Chemical Analyst had an opportunity to verify the seals on the bottles to ascertain the genuineness of the sample. Therefore, nonexamination of the property clerk of the Court and the police official who delivered the samples to the Laboratory is fatal to the prosecution. This view was fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314). 15. In the absence of any evidence to show that the contraband substance recovered from the place of occurrence eventually reached the hands of the analyst in the Chemical Examiner's Laboratory, Ext. P11 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 contraband substance cannot Crl.Appeal. 2972/2008 9 be conclusive proof by itself. The sample seized and that tested have to be co-related. 17. The learned counsel for the accused further submitted that, since part of the investigation was done by an incompetent officer, the whole proceedings are null and void. The learned counsel relied on S.R.O. No. 321/96 and the decision of this Court in **Velutha v. Sub Inspector of Police** (2016 (4) KHC 206) to substantiate his contention. S.R.O. No. 321/96 reads thus: “S.R.O. No. 321/96.- In exercise of the powers conferred by section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and 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 purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.” 18. As per the above mentioned S.R.O., a police officer of and above the rank of Sub Inspector of Police in charge of law and order and working in the general executive Crl.Appeal. 2972/2008 10 branch of the police department is competent to exercise powers under Sections 31, 32, 33 etc of the Abkari Act. 19. In the present case, a major part of the investigation was done by P.W.6, an Assistant Sub Inspector of Police (P.W.6). In **Velutha's case** (supra) this Court held that as part of the investigation was done by an incompetent officer, the trial Court had no jurisdiction to take cognizance of the offences based on the final report submitted. This view is fortified by the judgment in **Haridas v. State of Kerala** (2015 (1) K.L.T. 958). 20. The upshot of the above discussion is that the conviction and sentence passed against the appellants cannot be sustained. The appellants/accused are found not guilty of the offence alleged. In the result, ## (i) The Appeal is allowed. - (ii) The judgment of conviction and sentence passed against the accused is set aside. Crl.Appeal. 2972/2008 11 (iii) The accused are acquitted of the offence alleged. (iv) They are set at liberty. (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. Sd/- **K. BABU** **JUDGE** sb