Jayachandran Pillai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938 CRL.A.No. 1150 of 2004 (A) --------------------------SC 289/1999 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM APPELLANT/ACCUSED NO.1.: ------------------------------------ JAYACHANDRAN PILLAI, S/O.PADMANABHAN PILLAI, ASWATHY BAHVAN, MUTHUPILAKKADU, SASTHAMCOTTA, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT/COMPLAINANT.: ---------------------------------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, SASTHAMCOTTA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI M V ANANTHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.1150 of 2004 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of January 2017 ## JUDGMENT The appellant is the first accused before the court below. The appellant was convicted by the court below under Sections 55(a) and (g) of the Abkari Act. The appellant was also sentenced to rigorous imprisonment for four years and a fine of Rs.1,00,000/- and in default to simple imprisonment for one year under Section 55(a) of Abkari Act. No separate sentence was awarded under Section 55(g) of the Abkari Act. 2. The prosecution allegation is that on 29.9.1998 at about 8.30 p.m., the appellant and the other accused were Crl.A.1150/2004 : 2 : found in possession of materials and utensils for the manufacture of arrack. Seven litres of arrack was there in possession of the accused at the relevant time. 3. Heard. 4. The learned counsel for the appellant has argued that even though the contraband articles were seized on 29.9.1998, the said articles were produced before the court only on 8.2.1999 and in the said circumstances, the appellant is entitled to benefit of doubt. In this case, the incident was on 29.9.1998. Ext.P4 Property List would show that the contraband articles and the sample were produced before the court only on 8.2.1999. No satisfactory explanation was given by the prosecution as to why there was inordinate delay in producing the sample Crl.A.1150/2004 : 3 : before the court. PW4 stated that since there was no space in the court, the sample was not accepted by the learned Magistrate. The said version of PW4 cannot be correct because Ext.P4 does not contain the initial of the learned Magistrate made on any date prior to 8.2.1999. The learned Magistrate put his initial on Ext.P4 only on 8.2.1999, which would show that the above version of PW4 cannot be correct. It is clear from the endorsement in Ext.P4 that the contraband and the sample were produced before the learned Magistrate only on 8.2.1999 and the learned Magistrate then directed the Sub Inspector of Police to keep the contraband in his safe custody. The delay as such, is not always fatal to the prosecution case. However, when there is inordinate delay in producing the Crl.A.1150/2004 : 4 : sample before the court, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant and consequently, the appellant is entitled to benefit of doubt. 5. It is also to be noted that no sample of the wash was produced before the court. No satisfactory explanation was given by the prosecution as to why the sample of wash was not collected and produced before the court. 6. It is also to be noted that no Forwarding Note was marked before the court. No forwarding note is also available with the records transmitted to this court, which would show that no forwarding note was prepared or produced before the court. Crl.A.1150/2004 : 5 : ## 7. In Prakasan v. State of Kerala [2016(1) KLD 311], the court held thus:- “Further in the absence specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had Crl.A.1150/2004 : 6 : succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” ## 8. In Sasidharan v. State of Kerala [2007(1)KLT 720], ## the court held thus:- “The thondy clerk, who was in charge of M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 9. The Division Bench of this Court in Ravi v. State of Kerala [2011(3) KLT 353] held that the prosecution in a case under the Abkari Act could succeed only if it is shown Crl.A.1150/2004 : 7 : that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. 10. In this case, the forwarding note was neither prepared nor produced before the court. Therefore, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper -proof condition. Therefore, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances also, the appellant Crl.A.1150/2004 : 8 : is entitled to benefit of doubt. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Sections 55(a) and (g) of the Abkari Act and the appellant stands acquitted for the said offences. The bail bond of the appellant stands discharged. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/24.1.2017_ _// True Copy //_ _PA to Judge_