Illath Aneesh S/O Nanu, Tholambra Amsom, Panambat Desom; Kattan Prakashan S/O Krishnan, Tholambra Amsom, Puzhathi Desom; Manoli Prakashan S/O Kunhanandan, Tholambra Amsom, Near Tholambra U.P. School v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** ## **CRL.A NO. 535 OF 2008** **AGAINST THE ORDER/JUDGMENT CP 117/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **,KUTHUPARAMBA** **SC 1246/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY** ## **APPELLANTS:** **1 ILLATH ANEESH S/O. NANU, THOLAMBRA AMSOM, PANAMBAT DESOM. 2 KATTAN PRAKASHAN, S/O.KRISHNAN, THOLAMBRA AMSOM, PUZHATHI DESOM. 3 MANOLI PRAKASHAN S/O.KUNHANANDAN, THOLAMBRA AMSOM,, NEAR THOLAMBRA U.P.SCHOOL. BY ADV SUNNY MATHEW** **RESPONDENT:** ## **STATE OF KERALA** **THROUGH THE SUB INSPECTOR OF POLICE, MALOOR POLICE STATION,, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.P.P)** T **HIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.535 of 2008** **2** ## **`JUDGMENT`** ## **`Dated this the 30[th] day of May, 2022`** ``` Aggrieved by the judgment dated 15.02.2008 passed by the Additional Sessions Court, (Adhoc-I), Thalassery in S.C.No.1246/2005, the three accused have preferred this appeal. The appellants/accused were convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a period of six months each and pay a fine of Rs.1 Lakh each. ``` ``` 2.The prosecution case is that on 28.02.2004 at 11.30 a.m., the appellants/accused were found storing 10,000 litres of wash for the purpose of distilling arrack in the unoccupied land owned by one Prakasan at Thalassery, in violation of the provisions of the Abkari Act. ``` ``` 3.After completing the investigation, final report was submitted against the appellants/accused for the offence punishable under Section 55(g) of the Abkari Act ``` **CRL.A.No.535 of 2008** **3** ``` 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, charge was framed against them for the offence punishable under Section 55(g) of the Abkari Act. The appellants/accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. ``` ``` 4.The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8. ``` ``` 5.After the closure of the evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. 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 the arguments addressedon both sides, found the accused guilty of the offence under Section 55(g) ``` **CRL.A.No.535 of 2008** **4** ``` of the Abkari Act and convicted them thereunder. ``` ``` 6.Heard Sri.Sunny Mathew, the learned counsel for the appellants and Smt.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 the identity of the persons found in possession of the` - `contraband articles at the scene of occurrence.` - `(b) The delay in the production of the bottle` - `containing the sample has not been satisfactorily explained by the prosecution.` - `(c) The prosecution failed to establish that the sample allegedly drawn from the place of` - `occurrence eventually reached the Chemical Examiner's laboratory.` `8. The seizure was effected on 28.02.2004 by the` `Sub Inspector of Police, Kelakam Police Station (PW1). The` **CRL.A.No.535 of 2008** **5** ``` Police team led by PW1 was on patrol duty on the date of occurrence. When the Police team reached Surverikunnu at 11.30 a.m, they found the three accused storing wash in a pit in the unoccupied land owned by one Prakasan. The Police seized the contraband substance as per Ext.P1 seizure mahazar. According to PW1, on seeing the Police team, the three persons found storing the contraband substance escaped from the scene and they could not be arrested. ``` ``` 9.The learned counsel for the appellants submitted that the prosecution miserably failed to establish the identity of the persons who were found in possession of the contraband articles. As per the prosecution case, PWs 1 and 2 have no case that they had any previous acquaintance with the appellants. They identified the appellants in the Court in the year 2008, after a long lapse of 4 years. There is nothing on record to show that the witnesses, who identified the accused, had any opportunity to see them after the incident. Going by their evidence, ``` **CRL.A.No.535 of 2008** **6** ``` they had only a fleeting glimpse of the persons, who ran away from the scene of occurrence. ``` ``` 10. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: Kanan and others v. State of Kerala [AIR 1979 SC 1127], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 SC 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 SC 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 SC 367]. So, on this ground alone the prosecution must fail. ``` ``` 11. The alleged seizure was effected on 28.02.2004. The bottle containing the sample was produced before the ``` **CRL.A.No.535 of 2008** **7** ``` Court only on 08.03.2004. Ext.P4 property list would also show that the material objects were produced before the Court only on 08.03.2004. The prosecution has not offered any satisfactory explanation for the delay in production of the properties before the Court. ``` ``` 12. In Ravi v. State of Kerala [2011 (3) KHC 121] on the question of delay in the 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. ``` ``` 13. There is no satisfactory explanation for the delay ``` **CRL.A.No.535 of 2008** **8** ``` 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. ``` ``` 14. The detecting officer, who had drawn the sample, had not narrated the nature of the seal stated to have been affixed on the bottle containing the sample in the seizure mahazar. He had not given evidence as to the nature of the seal used. ``` ``` 15. The detecting officer, who had drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the Court {Vide:Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), Achuthan v. ``` **CRL.A.No.535 of 2008** **9** ``` State of Kerala [2016(1) KLD 391], Krishnadas v. State of Kerala (2019 KHC 191)}. ``` ``` 16. Ext.P6 Forwarding Note does not contain a legible impression of the specimen seal used. Ext.P7 Certificate of Chemical Analysis shows that the bottle containing the sample was forwarded to the Chemical Examiner's laboratory as per letter dated 08.03.2004 of the Judicial First Class Magistrate Court, Kuthuparamba. The sample reached the laboratory only on 17.04.2004. The prosecution has not given evidence as to the date on which the official concerned obtained the sample from the Court. The necessary inference is that the Police official concerned received the bottle containing the sample from the Court on 08.03.2004. But, the same reached the laboratory only on 17.04.2004. No satisfactory explanation was offered by the prosecution for the delay in bringing the sample to the laboratory. ``` ``` 17. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC ``` **CRL.A.No.535 of 2008** **10** ## `38] held thus:` ``` “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” ``` ``` 18. In the absence of any satisfactory explanation ``` ``` for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. ``` ``` 19. The sample remained in the custody of the property clerk of the Court, the official who received the sample from the Court and the Police official who delivered the sample in the laboratory. Those officials were not examined by the prosecution to establish 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]. ``` **CRL.A.No.535 of 2008** **11** ``` 20. 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. ``` ``` 21. The resultant conclusion is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. ``` ``` 22. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Resultantly, the accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. ``` ``` 23. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot ``` **CRL.A.No.535 of 2008** **12** ``` therefore be sustained. The appellants/accused are therefore, not guilty of the offence punishable under Section 55(g) of the Abkari Act. They are acquitted of the offence alleged. They are set at liberty. ``` ``` The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/30/05/2022 ```