George v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944** **CRL.A NO. 899 OF 2008** **AGAINST THE JUDGMENT IN SC 180/2007 OF IVTH ADDITIONAL SESSIONS** **COURT (ADHOC-II), THODUPUZHA** ## **APPELLANT/ACCUSED:** GEORGE, S/O. JOSEPH, PEEDIKACKAL HOUSE, NARAKAKKANAM KARA, THANKAMANY VILLAGE. BY ADVS. C.M.TOMY MATHEW SKARIA SUJESH J.MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.899 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.899 of 2008 --------------------------------------Dated this the 2[nd] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 30.04.2008, passed by the IV[th] Additional Sessions Court, (Adhoc-II), Thodupuzha in S.C.No.180/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that the appellant/accused was found in possession of 2 litres of illicit arrack on 10.12.2005 on the premises of his residence at Narakakkanam in Idukki district. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the 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, Crl.A No.899 of 2008 3 charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P8 and MOs 1 and 2. 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. C.M.Tomy, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the Crl.A No.899 of 2008 4 judgment of conviction and sentence on the following grounds: - (i) The delay in the production of the articles, including the sample, before the Court had not been satisfactorily explained by the prosecution. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s laboratory. 8. PW3, the Sub Inspector of Police, Idukki Police Station detected the offence. On 10.12.2005 at 2.40 p.m, on getting reliable information that the appellant was engaged in the sale of illicit arrack, the police team led by him proceeded to the residence of the appellant. On seeing the Police party, the accused escaped from his residence, abandoning a Can in the nearby well. PW3 verified the contents in the Can found in the well and ascertained that it was illicit arrack. 9. PW3 prepared Ext.P2 search memo evidencing seizure of the contraband substance. He had drawn the sample in two bottles and sealed the same. The detecting officer has not narrated the Crl.A No.899 of 2008 5 nature and description of the seal in the search memo or any of the contemporaneous documents prepared at the scene of occurrence. PW3 has not given evidence as to the nature and description of the seal used. 10. In Bhaskaran K. v. State of Kerala and another (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. 11. The contraband articles, including the bottles containing the sample, were produced before the Court only on 12.12.2005, which is evident from Ext.P5 property list. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. 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 Crl.A No.899 of 2008 6 ## (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. ” (Emphasis supplied) 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. 12. The prosecution has not offered any satisfactory explanation for the delay in producing the 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. 13. Exhibit P7 Certificate of Chemical Analysis shows that the bottles containing the sample were forwarded to the Chemical Examiner's laboratory on 14.12.2005. The samples reached the laboratory on 15.12.2005. The name of the officer with whom the samples were forwarded to the laboratory is not evident from Ext.P6, copy of the forwarding note. Exhibit P7 shows that the samples reached the laboratory through a Police Constable Crl.A No.899 of 2008 7 No.1698. The samples remained in the custody of the property clerk of the Court, the police official who received the same from the Court, and the police official who delivered the sample to the laboratory. The prosecution has not examined these witnesses. The inevitable consequence of this omission is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 14. Though the samples reached the laboratory on 15.12.2005, they were subjected to analysis only on 09.02.2007. On the question of delay in the analysis of the sample, this Court in Krishnadas v. State of Kerala [2019 KHC 191] held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” Crl.A No.899 of 2008 8 In the instant case, the delay of more than one year in the analysis of the sample has not been explained by the prosecution. 15. The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of Chemical Examiner. Therefore, Ext.P7 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 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 17. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. Crl.A No.899 of 2008 9 18. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the samples analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 19. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS