Karunakaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **CRL.A NO. 999 OF 2007** **AGAINST THE JUDGMENT IN SC 757/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA, THIRUVANANTHAPURAM CP 25/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA,** **THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** KARUNAKARAN, S/O. NARAYANA PANICKER, CHARUVILAKATHUPUTHEN VEEDU, KUTTACHAPURAM, AMACHAL MURI, KULATHAMAL VILLAGE. BY ADVS. NAGARAJ NARAYANAN SAIJO HASSAN A.S.SABU ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV M.C. ASHI,PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.999 of 2007 2 ## **K.BABU, J.** -------------------------------------- Criminal Appeal No.999 of 2007 --------------------------------------Dated this the 1[st] day of September, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 01-06-2007, passed by the learned Additional Sessions Judge, Neyyattinkara in S.C No.757/2001, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under section 58 of the Abkari Act. 3. The prosecution case is that on 16-05-1999 at about 6.00 p.m, the accused was found in possession of 1 litre of arrack in a 3 litre black jerry can, a glass tumbler and another can containing 2 ¾ litres of illicit arrack at Amachal Muri, Kulathummal Village. 4. After completion of the investigation, the final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial First Class Magistrate Court, Crl.A No.999 of 2007 3 Kattakkada. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court, Neyyattinkara. On appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P9 and MOs 1 to 3. 6. 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 is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is Crl.A No.999 of 2007 4 guilty of the offence under Section 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 Lakh under section 58 of the Abkari Act. 7. Heard Sri.Saijo Hassan, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence. - (a) The delay in the production of the properties before the court has not been satisfactorily explained. - (b) The prosecution failed to establish that sample from the contraband substance was drawn at the place of occurrence. - (c) The specimen impression of the seal has not 5 Crl.A No.999 of 2007 been produced before the court and forwarded to the Chemical Examiner. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The point** 11. PW3, the Sub Inspector of Police, Kattakkada police station detected the offence. He has given evidence that on 16-05-1999 at 6.10 p.m the accused was found carrying a can and a glass tumbler at Amachal in Kulathummal Village. PW3 seized the contraband substance found in possession of the accused as per Ext.P1 seizure mahazar. The accused was arrested from the scene. He has further given evidence that he collected arrack in 2 bottles, each containing 375 ml, 6 Crl.A No.999 of 2007 to be used as samples and sealed the same. 12. PW2, the police constable who had accompanied PW3, supported the prosecution. PW1, the independent witness, did not support the prosecution. 13. PW4, the property clerk of the Magistrate Court concerned gave evidence that he had received the properties including the samples in the court. 14. The learned counsel for the accused contended that the prosecution has not satisfactorily explained the delay in the production of the properties before the court. Admittedly, the properties, allegedly seized from the place of occurrence on 16-05-1999, were produced before the court only on 25-05-1999. The explanation given by the detecting officer regarding the delay in the production of the properties before the court is that he was busy with special duty. 15. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of the properties a Division Bench of this Court held as Crl.A No.999 of 2007 7 ## follows: - _“8. We, therefore, answer the reference as_ - _follows:_ _1. 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.” (Emphasis supplied)_ The Division Bench held that the production of the properties 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 explanation for the delayed production of the property. Unexplained delay in the production of the properties including the bottles containing the sample 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 contraband substance allegedly seized from the Crl.A No.999 of 2007 8 place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to establish his contentions. - (1) There is no convincing evidence to show that sample was drawn at the place of occurrence by the detecting officer. - (2) The specimen impression of the seal has not been produced before the court and forwarded to the Chemical Examiner's laboratory. 17. The case of the prosecution is that sample was drawn at the scene of occurrence. PW3, the detecting officer and PW2, the police official who had accompanied him, gave evidence before the court that sample was collected from the contraband substance which was seized from the place of occurrence in two bottles, each containing 375 ml. The property clerk of the court (PW4) also stated that he had received 2 bottles containing the sample before the court on 9 Crl.A No.999 of 2007 25-05-1999. 18. The credibility of the version given by these witnesses is under challenge. Ext.P1 seizure mahazar dated 16-05-1999, the contemporaneous document evidencing seizure, does not contain any mention that the sample was drawn by the detecting officer at the place of occurrence. It is pertinent to note that Ext.P4, the list of properties, sent to the Magistrate does not contain mention of the bottles containing the sample. As per Ext.P4, the Police Inspector concerned produced two cans and a glass tumbler. No other properties were seen produced by the police inspector concerned. Exhibit P9 is a copy of the relevant page of property register, wherein also there is no mention of the bottles containing the sample. PW4 stated that the receipt of the samples was not specifically mentioned in Ext.P9 or in any other contemporaneous documents. Exhibit P1 seizure mahazar, Ext.P4 property list and Ext.P9 copy of the property register consistently would 10 Crl.A No.999 of 2007 show that the bottles containing the sample were not produced before the court. The resultant conclusion is that the oral evidence of PWs 2, 3 and 4 to the effect that the bottles containing the sample were produced before the court is not credible and acceptable. I have no hesitation to hold that the prosecution miserably failed to establish that the bottles containing the sample were produced before the court along with the other properties. 19. The specimen impression of the seal has not been produced before the court. Exhibit P1 seizure mahazar, is silent regarding the nature of the seal used. The detecting officer has not given evidence as to the nature and description of the seal stated to have been used by him. In _**Bhaskaran K. 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 11 Crl.A No.999 of 2007 bottles containing the sample and that the nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the sample is to be produced before the court to ascertain the genuineness of the contraband substance produced. In the absence of the specimen impression of the seal the Magistrate concerned is unable to ascertain the genuineness of the contraband substance, including the sample, produced before the court. 20. The prosecution relied on Ext.P7 to contend that the specimen impression of the seal was produced before the court. Exhibit P7 is the seal of the Judicial Magistrate of First Class-I, Kattakkada. Exhibit P8 is the copy of the forwarding note wherein also the specimen impression of the seal has not been mentioned. In _**Rajamma v. State of Kerala**_ (2014(1) KLT 506), while dealing with a similar fact situation 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_ Crl.A No.999 of 2007 12 _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 PW.1 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 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.”_ In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner no evidentiary value can be attached to Ext.P5 certificate of chemical analysis. 21. The vital aspect to be considered in this case is that, this Court is kept in the dark as to who had drawn the sample, which was sent to the Chemical Examiner’s laboratory. Exhibit P4 property list read with Ext.P1 seizure mahazar would go to show that two cans containing the contraband substance were seized from the place of occurrence. The two cans containing Crl.A No.999 of 2007 13 the contraband substance and a glass tumbler were produced before court as per Ext.P4. The procedure by which sample was drawn in two 375 ml bottles which were sent to the Chemical Examiner’s laboratory has not been explained by the prosecution. The date on which Ext.P8, the forwarding note, was produced before the court is not mentioned. The learned Magistrate, who put his initials in Ext.P8, had also not mentioned the date on which he made the initial. This Court is unable to accept the case of the prosecution that the bottles containing the sample stated to have been produced through Ext.P8 was drawn from the contraband substance allegedly seized from the place of occurrence. The inevitable conclusion is that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was subjected to chemical analysis in the Chemical Examiner’s laboratory. 22. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC Crl.A No.999 of 2007 14 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. 23. Resultantly, Ext.P5 certificate of chemical analysis has no sanctity at all. 24. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance allegedly recovered from the place of occurrence. {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 25. 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 benefit 15 Crl.A No.999 of 2007 of doubt arising from the absence of link evidence as discussed above. 26. 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. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS