Kurukkan Parambil Vijayan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943** **CRL.A NO. 1672 OF 2007** **AGAINST THE JUDGMENT DATED 04.08.2007 IN SC 608/2005 OF THE** **ADDITIONAL SESSIONS JUDGE, (ADHOC)-I, THALASSERY.** **APPELLANT/1ST ACCUSED:** **KURUKKAN PARAMBIL VIJAYAN S/O.BHASKARAN, KORANHI, MUZHAKKUNNU AMSOM.** **BY ADV SRI.C.P.PEETHAMBARAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE S.H.O., IRITTY POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1672 OF 2007** 2 ## **K. BABU J.** ## **-----------------------------------Crl.A.No.1672 of 2007** **------------------------------------** Dated this the 29[th] day of July, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 04.08.2007, passed by the learned Additional Sessions Judge, (Adhoc-I), Thalassery, in SC.No.608/2005. 2. By the impugned judgment the appellant (accused No.1) was convicted of the offences punishable under Sections 55(a) and 55(g) of the Kerala Abkari Act. 3. The prosecution case is that on 13.09.2003 at about 06.30 p.m., the appellant and the other accused in this case were found distilling arrack in the landed property owned by one Mammad at Koodaladu, Muzhakkunnu amsom, Kannur District. 4. After completion of the investigation, final report was submitted against the appellant and the other **CRL.A NO. 1672 OF 2007** **==> picture [7 x 9] intentionally omitted <==** accused in this case for the offences punishable under Sections 55(a) and 55(g) of the Abkari Act before the Judicial First Class Magistrate Court, Mattanur. 5. The case was committed to the Sessions Court, Thalassery, from where it was made over to the Trial Court. On appearance of the accused charges were framed against them for the offences punishable under Sections 55(a) and (g) of the Abkari Act. The accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P7 and Mos.1 to 6. 7. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They 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 they were called upon to enter on their defence and **CRL.A NO. 1672 OF 2007** 4 to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the appellant (accused No.1) is guilty of offences under Sections 55(a) and (g) of the Abkari Act and he was convicted thereunder. The accused Nos.A2 to A4 were acquitted of the charges. The appellant was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.C.P.Peethambaran, the learned counsel appearing for the appellant and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction and sentence: (a) The inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. **CRL.A NO. 1672 OF 2007** **==> picture [7 x 9] intentionally omitted <==** (b) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. 11. 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** 12. PW4, the SI of Police, Iritty Police Station, was on patrol duty on 03.09.2002. On getting reliable information that the appellant and the other accused were engaged in distilling arrack at the place of occurrence, the Police team led by PW4 reached there at 06.30 p.m., and found 4 persons distilling illicit arrack. On seeing the Police party, they attempted to escape from the **CRL.A NO. 1672 OF 2007** 6 scene. But the appellant was arrested. The other accused ran away from the scene. PW4 seized Wash, 3 liters of illicit arrack and other utensils used for distilling arrack from the place of occurrence. He collected sample from the illicit arrack in 2 bottles (375 ml each) and sealed the same. 13. PWs 1 and 2, the independent witnesses, did not support the prosecution case. 14. Sri.C.A.Sebastian (CW10), ASI of Police, Iritty Police Station, conducted initial investigation. PW3 completed investigation and submitted final report. 15. The learned counsel for the appellant contended that the inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. The alleged seizure was on 03.09.2002. Admittedly, the articles including the samples, were produced before the court only on 07.09.2002. PW4, the detecting officer, gave evidence that the properties were entrusted to CW10, the **CRL.A NO. 1672 OF 2007** 7 ASI of Police who conducted the initial investigation, who was not examined as a witness before the court. PW3 stated that he had found the properties in the property room attached to the Iritty Police Station. The explanation offered by PW3 for the delay in the production of the properties is no way satisfactory. 16. On the question of delay in the production of the properties, the 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 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) 17. 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. **CRL.A NO. 1672 OF 2007** 8 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. 18. The learned counsel for the appellant further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused ultimately reached the Chemical Examiner's laboratory. 19. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: (a) The inordinate delay in the production of properties before the court has not been satisfactorily explained. - (b) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. **CRL.A NO. 1672 OF 2007** **==> picture [7 x 9] intentionally omitted <==** - (c) Ext.P1, seizure mahazar, is also silent regarding the nature and description of the seal said to have been used. - (d) There is also no convincing evidence to ascertain the person through whom the articles, including samples, were produced before the court. - (e) The delay in the analysis of the sample in the Chemical Examiner's laboratory has not been satisfactorily explained. - (f) Prosecution failed to establish the date on which - the sample was forwarded to the Chemical Examiner's laboratory. 20. As discussed above, the delay in the production of the properties before the court has not been satisfactorily explained. Prosecution has not adduced any evidence as to through whom the articles, including samples, were produced before the court. PW4, the detecting officer, gave evidence that the properties, including sample, were entrusted to CW10 who failed to **CRL.A NO. 1672 OF 2007** 10 give evidence before the court. 21. PW4, 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 seizure mahazar, does not contain any narration as to the nature and description of the seal affixed on the bottles containing the sample. 22. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottles containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. 23. Ext.P4, the copy of the forwarding note, does not contain the date on which the sample was forwarded to the Chemical Examiner's laboratory. Ext.P5, certificate of Chemical analysis, would show that the bottles **CRL.A NO. 1672 OF 2007** 11 containing the sample were forwarded to the laboratory by the Judicial First Class Magistrate, Mattanur as per letter No.R.P.412/02 dated 'nil'. Ext.P5 would show that the samples reached the laboratory on 19.09.2002. But this Court is in the dark as to when the samples were forwarded from the court concerned. The learned Magistrate who countersigned on Ext.P4, the copy of the forwarding note, also omitted to mention the date on which he affixed his signature. 24. Though the samples reached the laboratory on 19.09.2002, the analysis was conducted only on 29.11.2003. The delay in the analysis of the sample has not been satisfactorily explained by the prosecution. 25. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State of 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 **CRL.A NO. 1672 OF 2007** 12 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. It is the admitted case of the prosecution that the samples changed several hands before it reached the Chemical Examiner's laboratory. The samples remained in the custody of Shri.C.A.Sebastian (CW10), the property clerk of the court, the Police official who received the same from the court and produced in the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303]). 27. In the absence of satisfactory evidence to **CRL.A NO. 1672 OF 2007** **==> picture [13 x 9] intentionally omitted <==** convince the court that the sample reached the laboratory in a tamper-proof condition no evidentiary value can be given to Ext.P5 certificate of chemical analysis. 28. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 29. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. (vide: **Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 30. 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 **CRL.A NO. 1672 OF 2007** **==> picture [13 x 9] intentionally omitted <==** laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 31. 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 is therefore not guilty of the offences punishable under Sections 55(a) and 55(g) of the Abkari Act. He is acquitted of the charges levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS