Jeevy v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **CRL.A.No.1023 OF 2007** ## **SC 22/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)III, THIRUVANANTHAPURAM** ## **APPELLANT/S:** **JEEVY, D/O. THYANAMMA, VADAKKATHALATHU VEEDU, VALIYAPLANKALA,POOVAR DESOM, THIRUPPURAM VILLAGE.** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.R.V.SREEJITH** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, (SUB INSPECTOR OF POLICE, POOVAR POLICE STATION).** **SMT. SREEJA .V, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 1023/2007** -2- ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act. 2. The prosecution allegation is that on 20.6.2002 at about 5 p.m., the appellant was found in possession of two litres of arrack, in contravention of the provisions of the Abkari Act. ## 3. Heard. 4. The learned counsel for the appellant has argued that since there is no evidence with regard to the drawing of the sample and sending the same to the laboratory, the appellant is entitled to benefit of doubt. 5. PW1 was the detecting officer. PW1 stated that he seized the contraband as such from the spot. Ext.P5 **Case No. Crl.A 1023/2007** -3- property list would also show that the contraband articles were seized and sealed as such at the spot. It appears from the evidence of PW1 and Ext.P5 that no sample was drawn from the contraband at the time of effecting seizure of the contraband by PW1. 6. Ext.P8 is the Certificate of Chemical Analysis, which would show that one sealed bottle containing 180 ml of sample was received in the laboratory. This would show that the sample was taken from the contraband after its production before the court. However, the Thondy Clerk, who had drawn the sample from the contraband was not examined before the court to prove the drawing of the sample from the contraband. Since the Thondy Clerk was not examined, the drawing of the sample and sending the **Case No. Crl.A 1023/2007** same to the laboratory could not be established by the prosecution. 7. 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.” 8. 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 **Case No. Crl.A 1023/2007** -5- 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. 9. No forwarding note was produced or marked in this case. Therefore, the prosecution could not establish the tamper – proof despatch of the sample to the laboratory. Since there is no evidence in this case to prove the drawing of the sample from the contraband and sending the same to the laboratory in tamper – proof condition, there is no 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. **Case No. Crl.A 1023/2007** In the said circumstances, the appellant is entitled to benefit of doubt. 10. There is yet another reason to grant benefit of doubt to the appellant. PW1 was the Assistant Sub Inspector of P olice, who detected the offence, seized the contraband, arrested the appellant and registered the crime. The sampling was also done by PW1. As per S.R.O. No.321/96, all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were empowered to exercise all powers and perform all duties of the Abkari officers. The Assistant Sub Inspector of Police was not included as an Abkari Officer as per S.R.O. No.321/96. The learned Public Prosecutor has **Case No. Crl.A 1023/2007** -7- submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Act. 11. The Division Bench of this Court in Subash v. State of Kerala [2008(2) KLT 1047] held that the Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Abkari Act. In the above said case, the Division Bench directed the final report to be returned for representation after curing the defects, if the trial was not commenced. In this case, since the Assistant Sub Inspector of Police was not an Abkari Officer, the seizure effected, the arrest of the appellant and the registration of the crime by PW1 were without authorisation and jurisdiction and in the said circumstances, the conviction and sentence passed **Case No. Crl.A 1023/2007** -8- by the court below on the basis of the said seizure, arrest and registration of the crime, cannot be sustained. In the said circumstances also, the appellant is entitled to benefit of doubt. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. sd ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/