Krishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944** ## **CRL.A NO. 811 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 303/2006 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, KOZHIKODE** **CP 85/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERAMBRA APPELLANT/ACCUSED:** KRISHNAN, S/O. KUNHIKANARAN, AGED 58 YEARS, KUNNUMMAL VEETTIL,, MUNDAKARA DESOM, KINALUR AMSOM,, KOLLAM, KOYILANDY, KOZHIKODE DISTRICT. BY ADV SRI.NIDHI BALACHANRAN ## **RESPONDENT/STATE AND COMPLAINANT:** 1 STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE PREVENTIVE OFFICER BALUSSERY EXCISE RANGE, KOZHIKODE. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 811 of 2008 2 ## **K.BABU, J** . -------------------------------------- Criminal Appeal No.811 of 2008 --------------------------------------Dated this the 8[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 07.03.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode in Sessions Case No.303/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 15.05.2004 at 5.00 p.m the appellant/accused was found in possession of 3 litres of arrack in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to Crl.A No. 811 of 2008 3 the Sessions Court, 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 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts P1 to P6 and MO1. 5. After the 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 evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Smt.Nidhi Balachandran, the learned counsel Crl.A No. 811 of 2008 4 appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds:- a) The delay in the production of properties before the Court has not been explained by the prosecution. b) The delay in the production of the sample before the laboratory after obtaining the same from the Court has not been explained by the prosecution. c) There is an inordinate delay in the analysis of the sample. 8. The alleged seizure was effected on 15.05.2004. PW1, the Excise Preventive Officer of Balussery Excise Range, effected the seizure. The accused along with the contraband articles and the contemporaneous documents prepared at the scene of occurrence were produced before Crl.A No. 811 of 2008 5 the Excise Inspector (PW4). The accused was produced before the Court on 16.05.2004. PW4 admitted that the properties, including the sample, were produced before the Court only on 17.05.2004. He has not offered any explanation for the delay in the production of the properties. 9. On the question of delay in the production of properties, a Division Bench of this Court in **Ravi v. State of Kerala & another** (2011(3) KHC 121) held thus: “8. We therefore, answer the reference as follows: (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 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.” 6 Crl.A No. 811 of 2008 In **Ravi's Case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 10. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P5, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 17.03.2005 of the Judicial First Class Magistrate-II, Perambra. Sri.K.K.Baburaj, an Excise Guard, handed over the sample to the laboratory on 22.05.2005. In the absence of any evidence as to the date on which the sample was forwarded to the laboratory, the necessary inference is that the sample was forwarded on 17.05.2004. Sri.K.K Baburaj, the Excise Guard who obtained custody of the sample from the Court, was examined as a witness, but he has not given any explanation as to the delay in bringing the sample to the Crl.A No. 811 of 2008 7 laboratory. 11. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “ _Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ _12._ Though the sample reached the laboratory on 22.05.2004, it was subjected to analysis only on 18.08.2005. No explanation was offered from the side of the prosecution in the delay in the analysis of the sample. Crl.A No. 811 of 2008 8 13. On the question of delay in the analysis of the sample, in _**Krishnadas v. State of Kerala**_ (2019 KHC 191) this Court held thus: _“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.”_ 14. In the instant case, the delay of more than o n e y e a r in analysing the sample has not been explained by the prosecution. In the absence of any convincing evidence that the illicit arrack recovered from the possession of the accused was subjected to 9 Crl.A No. 811 of 2008 analysis in the Chemical Examiner's Laboratory, Ext.P5, Certificate of Chemical Analysis has no evidentiary value. 15. 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 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 16. 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. 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 Crl.A No. 811 of 2008 10 guilty of the offence punishable under Section 8 (2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk