JAYASHEELAN v. STATE OF KERALA; THULASEEDHARAN v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.783 OF 2007** **SC 202/2001 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA** **CP 66/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA** ## **APPELLANT/S:** **JAYASHEELAN, S/O. BHASKARAN, MYLADICHARUVILA VEEDU, VETTIKAVALA VILLAGE,, KOTTARAKKARA TALUK.** **BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS** ## **RESPONDENT/S:** **STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, KOTTARAKKARA, REP. BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT. V. SREEJA,PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, ALONG WITH CRL.A.754/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 783/754/2007** -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.754 OF 2007** **SC 202/2001 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA** **CP 66/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA** ## **APPELLANT/S:** **THULASEEDHARAN, KOZHIYOTTUNIRAPPI VEEDU, CHIRATTAKKONAM MURI,VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK.** **BY ADVS.** **SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** - **2 SUB INSPECTOR OF POLICE KOTTARAKKARA POLICE STATION,, KOTTARAKKARA.** **SMT.M.K. PUSHPALATHA, SR.P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, ALONG WITH CRL.A.783/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 783/754/2007** -3- ## **JUDGMENT** The appellants were convicted and sentenced by the court below under Sections 55(a) and (i) of the Abkari Act. 2. The prosecution allegation is that on 11.10.1998 at about 4.30 p.m., the appellants were found in possession of 750 ml of bottle containing arrack with a glass, for the purpose of sale, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellants argued that since no forwarding note was marked and proved in this case, the appellants are entitled to be acquitted. ## **Case No. Crl.A 783/754/2007** -4- 5. It appears that no forwarding note was marked and proved in this case. 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “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.” 7. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown 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. **Case No. Crl.A 783/754/2007** 8. Since no forwarding note was marked and proved 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 appellants, which eventually reached the hands of the chemical examiner by change of hands in a tamper – proof condition. In the said circumstances, there is no link evidence connecting the appellants with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below on the basis of Ext.P1 Certificate of Chemical Analysis, cannot be sustained. In the said circumstances, the appellants are entitled to be acquitted. ## **Case No. Crl.A 783/754/2007** -6- 9. There is yet another reason to acquit the appellants. The incident in this case was on 11.10.1998. However, the contraband and the sample were produced before the court only on 27.10.1998. PW6 stated that the contraband and the sample were produced before the court by the Station Writer. PW6 further stated that the contraband and the sample were kept in the custody of the Station Writer till then. However, the Station Writer, who produced the contraband and the sample before the court, was not examined by the prosecution to prove the safe custody of the contraband and the sample till their production before the court. No reason was also stated by PW6 for the delay in producing the contraband and the sample before the court. There is also no convincing evidence with regard to the safe custody of the contraband **Case No. Crl.A 783/754/2007** -7- and the sample till their production before the court. It is not discernible as to why the contraband and the sample could not be produced before the court along with the appellants, particularly when the contraband involved in this case was only 750 ml. The delay as such is not always fatal to the prosecution case. However, if there is unexplained delay, the same is, no doubt, fatal to the prosecution case. Since there was unexplained delay from 25.8.2001 to 12.9.2001 in producing the contraband and the sample before the court in this case, 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 appellants, particularly when there is no evidence with regard to the safe custody of the sample till its production before the court. In the said circumstances, **Case No. Crl.A 783/754/2007** the appellants are entitled to be acquitted, granting benefit of doubt to the appellants. In the result, these Criminal Appeals stand allowed, setting aside the conviction and sentence passed by the court below and the appellants stand acquitted. The bail bonds of the appellants stand discharged. Needless to state that if the appellant in Crl.Appeal No.754 of 2007 had already deposited any amount before the court pursuant to the direction of this court, the said appellant is entitled to reimbursement of the said amount from the court concerned. ## SD ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/