Jayan S/O Parameswaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** **CRL.A NO. 2041 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 604/2006 OF III ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO. I, IRINGALAKKUDA,** ## **THRISSUR** **APPELLANT/ACCUSED:** **JAYAN, S/O. PARAMESWARAN, AGED 1 YEARS PAREKKATTUKARA, MURIYAD, THRISSUR DISTRICT.** **BY ADV SRI.A.C.DEVY** **RESPONDENT/STATE:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31.** **BY ADV.M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2041 of 2007 2 ## **K. BABU J.** **-----------------------------------Crl.A.No.2041 of 2007** **------------------------------------** Dated this the 24[th] day of September, 2021 ## **J U D G M E N T** This appeal is directed against the Judgment dated 01.10.2007, passed by the III Additional Sessions Judge (Adhoc) Fast Track Court No. I, Iringalakkuda, Thrissur in S.C.No. 604/2006. 2. By the impugned judgment, the appallent/accused has been convicted of the offence punishable under Section 58 of the Kerala Abkari Act. The prosecution case is that on 05.08.2004, the accused was found in possession of 30 litres of arrack in the residential building with door No. III/330 A (new No. III/523) of Muriyad Grama Panchayat, where the accused was residing. 3. After completion of the investigation the Crl.A.No.2041 of 2007 3 final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate, Irinjalakkuda. The case was committed to the Sessions Court, Thrissur from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P13 and MOs1 to 3. 5. After closure of the evidence on behalf of the prosecution, 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 that there was evidence against the accused and hence Crl.A.No.2041 of 2007 4 he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing the arguments addressed from both sides, found that the accused was guilty of the offence under Sections 58 of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 6. Heard Sri. A.C.Devy, the learned counsel appearing for the appellant/accused and Sri. M.C.Ashi, the learned Public Prosecutor appearing for the State. 7. The learned counsel for the appellant/accused submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. Crl.A.No.2041 of 2007 5 8. The learned Public Prosecutor, per contra, submitted that the prosecution has succeeded in establishing the charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 10. While PW1, the Additional Sub Inspector, Kodakara, was on patrol duty on 05.08.2004, he received information that the accused was engaged in the sale of arrack at Parekkattukara. The police party led by PW1 proceeded to there. They reached near the residence of the accused at about 7.00 a.m. After preparing Ext.P3 search memorandum and sending the same to the Court, PW1 searched the residence of the accused in the presence of witnesses. The accused was present Crl.A.No.2041 of 2007 **==> picture [7 x 9] intentionally omitted <==** in the house. PW1 recovered three cans kept in a room on the southern portion of the building. PW1 ascertained that the cans contained illicit arrack. He seized the contraband substances found there and arrested the accused. He collected arrack in nine 375ml bottles to be used as sample and sealed the same. PW1 prepared Ext.P1 search list. 11. PWs 2 to 4, the independent witnesses, did not support the prosecution case. PW6, the Police Constable, who had accompanied PW1, supported the prosecution. PW5 conducted the investigation and submitted the final report. 12. The learned counsel for the appellant/accused contended that the prosecution has not offered any satisfactory explanation for the delay in the production of the properties including the sample before the Court. The alleged seizure was effected on 05.08.2004. PW1 Crl.A.No.2041 of 2007 **==> picture [7 x 9] intentionally omitted <==** admitted that the properties including the sample were produced before the Court only on 09.08.2004. Ext.P13, the list of properties sent to the learned Magistrate, would show that the properties including the sample reached the Court only on 09.08.2004. 13. The explanation offered by PW1 for the delay in the production of the properties is that he had kept them in safe custody. The explanation given by PW1 is not satisfactory. 14. On the question of delay in the production of the properties, a Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] held thus: “1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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 Crl.A.No.2041 of 2007 8 |the production of the property before| |---| |Court (wherever it is practicable)| |should<br>also<br>take<br>place<br>without| |unnecessary delay. There should be| |explanation for the delay when there is| |delayed production of the property.<br>”| |(Emphasis supplied)| 15. The Division Bench held that production of the property before the Court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no satisfactory explanation for the delay in the production of the properties. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 16. The learned counsel for the accused further contended that the prosecution failed to establish that the samples allegedly drawn at the place of occurrence reached the Court as well Crl.A.No.2041 of 2007 9 as the laboratory in a tamper proof condition. 17. The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. Ext.P1 search list, the contemporaneous document evidencing seizure of the contraband, is silent regarding the nature and description of the seal used by the detecting officer. The specimen impression of the seal has not been produced before the Court. 18. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held that the detecting officer, who drew the sample, has to give evidence as to the nature of the seal affixed on the bottles containing the sample and the nature of the seal used shall be mentioned in the seizure mahazar. 19. The requirement of evidence regarding the Crl.A.No.2041 of 2007 10 nature and description of the seal is that, only if the specimen of the seal is produced before the Court, the Court can satisfy the genuineness of the sample produced before it. 20. In the instant case, there is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same had been provided to the Chemical Examiner's laboratory. The copy of the forwarding note which contains the specimen of the seal used and the name of the official with whom the sample was entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in evidence. 21. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus: Crl.A.No.2041 of 2007 11 “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, 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 by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 22. In **Rajamma v. State of Kerala** [2014 (1) ## KLT 506], this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with Crl.A.No.2041 of 2007 12 sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. 23. In view of the fact that there is no evidence to convince the Court that the specimen impression of the seal had been provided to the Chemical Examiner's laboratory, no evidentiary value can be given to Ext.P9 certificate of chemical analysis. 24. Ext.P9 certificate of chemical analysis shows that the samples reached the laboratory on 30.03.2005. The samples were subjected to analysis only on 30.03.2006. The delay in the analysis of the sample has not been explained by the prosecution. 25. This Court in **Krishnadas v. State of** Crl.A.No.2041 of 2007 13 ## **Kerala** (2019 KHC 191) held as follows: “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.” 26. In the instant case, the delay of more than one year in the analysis of the sample remains unexplained. 27. 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 Crl.A.No.2041 of 2007 14 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 28. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from 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]}. 29. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence and other circumstances discussed above. Crl.A.No.2041 of 2007 15 30. 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. The appellant/accused is, therefore, not guilty of the offence punishable under Section 58 of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. This Crl.Appeal is allowed as above. SD/- **K. BABU, JUDGE** rps/