Edanveettil Byju v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 CRL.A NO. 267 OF 2014** **AGAINST THE JUDGMENT DATED 22.02.2014 IN S.C.No.807/2012 OF ADDITIONAL SESSIONS COURT - II, THALASSERY APPELLANT/ACCUSED:** EDANVEETTIL BYJU, S/O.KUNHIRAMAN, KOTTIYUR AMSOM, DESOM, KUNAMBALLA, THALASSERY TALUK. BY ADV. SRI.V.BINOY RAM ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.SANAL P. RAJ, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeal.No.267 of 2014** 2 ## **JUDGMENT** This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, by the sole accused in S.C.No.807/2012 on the file of Additional Sessions Court-II, Thalassery, whereby the appellant was convicted under Sections 8(1) r/w 8(2) of Abkari Act and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a period of three months. 2. The respondent herein is the State of Kerala represented by the learned Public Prosecutor. 3. Shorn off unnecessary details, the allegation of the prosecution is that on 14.12.2011 at about 12:15 p.m while the Excise ## **Crl.Appeal.No.267 of 2014** ## 3 Inspector attached to Excise Range Office, Peravoor and his party were on patrol duty, on suspicion, when the accused was intercepted, it was found that he had possessed 6 litres of arrack in a 10 litres of Can against the prohibitions contained in the Kerala Abkari Act. The accused was arrested and contraband taken into custody. Crime was registered alleging commission of offences under Section 8(1) r/w 8(2) of the Kerala Abkari Act. 4. On investigation, final report filed before the Judicial First Class Magistrate, and, in turn, the case was committed to the Court of Sessions, Thalassery for trial and disposal. The 2[nd] Additional Sessions Judge tried the matter after completing pre-trial formalities and recorded evidence of PWs 1 to 3 and Exts.P1 to P8 on the side of the prosecution. 5. On closure of the prosecution evidence, the accused was questioned under Section 313(1) ## **Crl.Appeal.No.267 of 2014** **==> picture [7 x 9] intentionally omitted <==** (b) of Cr.P.C and his explanation to the incriminating circumstances found in evidence got recorded. 6. On appreciation of the evidence, the learned Sessions convicted the accused under Section 8(1) r/w 8(2) of the Kerala Abkari Act and sentenced to undergo rigorous imprisonment for a period of 3 months and to pay fine of Rs.1 lakh. The above conviction and sentence are under challenge in this appeal. 7. The learned counsel for the appellant argued that in this case the recovery of contraband and its tamper proof production are not satisfactorily established for want of timely production of the same before the court, due to delayed production of the inventory report before the court. The learned counsel argued that though Ext.P7 inventory report was prepared on 14.12.2011 on the date of recovery itself, the same reached the court only on ## **Crl.Appeal.No.267 of 2014** **==> picture [7 x 9] intentionally omitted <==** 06.03.2012, after a long delay of above three months. It is argued by the learned counsel for the appellant further that tamper free collection, production, forwarding and examination of the sample collected from the contraband is absolutely necessary to find criminal culpability on the accused in a case of this nature and any lacuna in the prosecution case is a reason to doubt the case and give benefit of doubt to the accused. 8. But the learned Public Prosecutor supported the verdict of the trial court mainly relying on the evidence of PW3, the Detective and Investigating Officer, who supported the recovery of the contraband from the conscious possession of the accused and arrested the accused. The learned Public Prosecutor submitted further that PW1, an independent witnesses to prove the recovery had admitted his signature in Ext.P1 arrest memo and Ext.P2 Mahazar. ## **Crl.Appeal.No.267 of 2014** **==> picture [7 x 9] intentionally omitted <==** Similarly, PW2 also admitted his signature in Ext.P2 Mahazar. Therefore, there is nothing to doubt the prosecution case. He conceded that PW1 and PW2 declared hostile to the prosecution during further examination. 9. While analysing the evidence, as per Ext.P7 inventory, one could notice that the contraband reached the court only on 06.03.2012, in a case involving recovery as on 14.12.2011. In a case alleging posession of contraband by the accused against the prohibitions contained in the Kerala Abkari Act, the prosecution is bound to prove that the contraband was collected in a tamper proof condition and the same reached the lab through the property clerk in a tamper proof condition. In this case, the property clerk was not examined to prove production and custody of the contraband before the court and forwarding of the same to the Forensic Science Laboratory in tamper free condition. In the **Crl.Appeal.No.267 of 2014** 7 decision reported in [2021 (5) KHC 347 : 2021 (5) KLT 321], _**Vijayan v. State of Kerala**_ this Court apprised the duties of the officers concerned, and it was held that any dereliction in the matter of collecting sample, forwarding the same to the court, then to Forensic Science Laboratory and getting report of the expert in a tamper proof condition would vitiate the entire prosecution case and the same is a reason for acquittal. In _**Vijayan**_ 's case (supra), this Court held as under: _“12. While summarising the essential steps required to be followed to ensure tamper free collection and examination of the sample of the alleged contraband, the following measures to be followed:_ _13. Steps to be followed by the officer collecting the sample:_ _(i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner;_ _(ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal_ **Crl.Appeal.No.267 of 2014** 8 _shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note;_ _(iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained;_ _(iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison; (v) The said officer shall depose about compliance of the above before the court while giving evidence. 14. Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:_ _(i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court; (ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note;_ _(iii) The forwarding letter shall contain the name of the official who is entrusted_ **Crl.Appeal.No.267 of 2014** 9 _to handover the sample to the Chemical Examiner;_ _(iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample;_ _(v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove._ _15. Measures to be ensured by the Chemical Examiner:_ _(i) Chemical Examiner shall ensure production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit;_ _(ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C._ _16. Unless and until the above safety measures are not ensured, it cannot be said that the sample of the contraband subjected_ **Crl.Appeal.No.267 of 2014** ## 10 _to chemical examination by the Chemical Examiner is one collected from the possession of the accused. Any lacuna in this regard is a reason to disbelieve the recovery and the chemical analysis report. Consequently, the entire prosecution case would fail.”_ 10. In this case, the production of the inventory report before the court after a delay of above three months is a strong doubt in the prosecution case. Apart from that the property clerk was not examined to prove tamper of the receipt and forwarding of the same to the Forensic Science Laboratory. Therefore, it appears that there are serious lacunas in the prosecution case and the same are reasons to disbelieve the prosecution case. Indubitably benefit of doubt shall go in favour of the appellant/accused. Therefore, I hold that the prosecution has miserably failed to prove commission of offences under Section 8(1) and 8(2) of the Abkari Act, as found by the trial court. ## **Crl.Appeal.No.267 of 2014** **==> picture [13 x 9] intentionally omitted <==** 11. In the result, this appeal stands allowed and the conviction and sentence imposed by the trial court against the appellant stand set aside and the bail bond of the appellant stands cancelled. The appellant is set at liberty forthwith. 12. It is ordered that fine, if any, deposited by the appellant in obedience to the order of this Court shall be refunded to the appellant, as per law. Registry is directed to forward a copy of this judgment to the Additional Sessions CourtII, Thalassery, within a period of 7 days for compliance and information. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww