Kuttappan Pillai S/O Madhavan Pillai v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-01-25
Court Decision / Holding: The appeal is allowed; conviction and sentence under Section 55(a) of the Abkari Act are set aside, and the appellant is acquitted.
Final Disposition: Acquittal

Parties to the Case

Appellants / Petitioners

Kuttappan Pillai S/o Madhavan Pillai

Respondents

State of Kerala Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• K.V. Anil Kumar

Counsels for Respondents

• Public Prosecutor (Sri. V.S. Sreejith)

Case Synopsis & Summary

This is a Kerala High Court criminal appeal (CRL.A. No. 485 of 2011) arising from the judgment in SC 728/2003 of the Addl. Sessions Court (Abkari Cases), Kottarakkara. The accused was convicted under Section 55(a) of the Abkari Act for possession of 2 litres of illicit arrack allegedly for sale, while the trial court acquitted under Section 55(i). The prosecution case rests on PW2’s testimony that on 14-12-2001 the appellant was found with contraband, seizure in Ext. P1, and a routine chain of custody culminating in lab analysis of samples. However, the defense contends grave flaws in the chain of custody: although seizure occurred on 14-12-2001, the contraband and its samples were produced in court only on 8-1-2002; Exts. P4 and P5 show delays and unresolved custody details; the forwarding note Ext. P6 lacks a specimen seal, and PW2 could not convincingly explain the delay. Citing Krishnan H. v. State, the defense argues that the absence of a sample seal undermines the link between the contraband and the accused. The High Court agreed with these deficiencies, highlighting the lack of safe custody evidence and the potential mismatch of the sample with the seized contraband, and consequently allowed the appeal, setting aside the conviction under Section 55(a) and acquitting the appellant. The result is acquittal; the bench was a single-judge proceeding by Justice B. Sudheendra Kumar.

Provisions of Law Cited

Section 55(a) of the Abkari ActSection 55(i) of the Abkari Act

Legal Doctrines & Maxims

Benefit of doubt to the accused
Presumption/concern regarding chain of custody of samples (absence of sample seal can cast doubt on link between contraband and accused)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that, although seizure occurred on 14-12-2001, the contraband and its samples were produced in court only on 8-1-2002, with no credible evidence of safe custody. Exts. P4 and P5 show discrepancies regarding the sample’s presence before the court, and the forwarding note (Ext. P6) lacks a specimen seal. PW2 could not convincingly explain the delay, and Krishnan H. v. State (2005 (1) KHC 822) is cited to argue that absence of the sample seal raises a reasonable doubt about the chain of custody. Consequently, there is no reliable link between the appellant and the contraband, warranting the benefit of doubt and acquittal under Section 55(a).

Contentions of Respondents

The prosecution argues that PW2’s investigation, seizure, framing of Ext. P1, and lab analysis establish possession of illicit arrack for sale under Section 55(a). The absence of a seal is a technical flaw, but the overall chain of events—from seizure to laboratory examination—suffices to sustain the conviction. The trial court’s verdict reflected credibility of the witnesses and material objects; the prosecution asserts that the link to the appellant is established beyond reasonable doubt.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishnan H. v. State	2005 (1) KHC 822	Positive	The court cites Krishnan H. v. State to illustrate that absence of the sample seal in the forwarding note can be a reason for doubting the chain of custody of the sample.

Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937 CRL.A.No. 485 of 2011 (A) -----------------------AGAINST THE JUDGMENT IN SC 728/2003 of ADDL. SESSIONS JUDGE, (ABKARI CASES), KOTTARAKKARA DATED 19-02-2011 APPELLANT(S)/ACCUSED: --------------------- KUTTAPPAN PILLAI S/O. MADHAVAN PILLAI, REVATHY MANDIRATHI, KIZHAKKEKARA MURI, VELIYAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. V.S. SREEJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. ..................................................... Crl.Appeal No. 485 of 2011 ..................................................... ## Dated this the 25the day of January, 2016 ## JUDGMENT The accused in SC No. 728 OF 2003 on the files of the Addl. Sessions Court, (Abkari Cases), Kottarakkara, filed this Appeal challenging the finding of conviction and sentence passed by the court below under Section 55(a) of the Abkari Act. 2. Heard. 3. The prosecution allegation is that on 14-12-2001 at about 7 p.m., the apapellant was found in possession of 2 litres of illicit arrack for the purpose of sale in contravention of the provisions of the Abkari Act. The offence alleged against the appellant was the offence under Section 55(a) and (i) of the Abakari Act. The court below acquitted the accused under Section 55(i) of the Abkari Act. 4. PW2 detected the offence. He arrested the accused Crl.Appeal No. 485 of 2011 -: 2 :- and seized the contraband as per Ext. P1 mahazar. Thereafter, he registered the crime. After completing the investigation, PW2 filed the final report before the Court. 5. Before the trial court, PW1 to PW3 were examined and Exts. P1 to P7 were marked for the prosecution, besides identifying MO1 to MO3. DW1 was examined on the side of the appellant. 6. PW1 was an independent witness examined by the prosecution to prove the occurrence. However, PW1 did not support the prosecution case. PW1 had even denied the signature in Ext. P1 mahazar. PW2 was the Circle Inspector of Police, Pooyappally, during the relevant period. He detected the offence. PW2 stated that on 14-12-2001 at about 7 p.m., while PW2 and party were on patrol duty, they saw the accused carrying the contraband with a glass. On getting suspicion, the Crl.Appeal No. 485 of 2011 -: 3 :- accused was intercepted and the content inside the bottle carried by the appellant was tested by smelling and tasting the same. Then, PW2 and others were convinced that the content inside the bottle was illicit arrack. The accused was arrested from the spot. He prepared Ext. P2 arrest memo in connection with the same. Samples were taken from the contraband. Thereafter, the samples were sealed as per Rules. PW2 also prepared Ext. P1 mahazar in connection with the above seizure. Thereafter, the accused and the contraband articles along with the contemporary records were brought to the police station and thereafter, PW2 registered the crime. PW3 was a police constable who accompanied PW2. PW3 also had given evidence supporting the evidence of PW2 in all material aspects. 7. The learned counsel for the revision petitioner has submitted that even though the seizure was effected on 14-12- Crl.Appeal No. 485 of 2011 -: 4 :- 2001, the contraband articles were produced before the court only on 8-1-2002 and hence, it cannot be said that the sample produced before the court and analaysed in the laboratory was the sample drawn from the contraband seized from the appellant particularly, when there is no evidence with regard to the safe custody of the sample till its production before the Court. PW2 stated that PW2 produced the sample before the Court on the next day of the incident. However, the sample was not accepted by the Clerk of the Court. PW2 admitted that there was no evidence to prove the above aspect. Ext. P4 property list would show that the sample was produced before the court only on 8-12002. On that day, the Court passed an order returning the material objects for keeping the same under the safe custody of the SHO concerned. Ext. P5 report would also show that the contraband was produced before the court only on 8-1-2002. It Crl.Appeal No. 485 of 2011 -: 5 :- is clear from Exts. P4 and P5 that the evidence of PW2 that the sample was produced before the court on the next day of occurrence cannot be correct. PW2 did not state any convincing reason as to why the material objects were not produced before the court till 8-1-2002. There is also no evidence with regard to the safe custody of the samples till the samples were produced before the Court. In the said circumstances, there cannot be any guarantee that the samples produced before the Court and examined in the laboratory were the samples drawn from the contraband seized from the appellant and consequently, the appellant is entitled to benefit of doubt. 8. It is also very relevant to note that Ext. P6 copy of the forwarding note does not contain the specimen of the seal. This Court in Krishnan H. v. State [2005 (1) KHC 822] held that the absence of sample seal in the space provided in the copy of Crl.Appeal No. 485 of 2011 -: 6 :- the forwarding note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. There is absolutely no evidence before the Court in this case to rebut the said presumption. For the said reason also, the link evidence connecting the appellant with the contraband seized and the sample analysed in the laboratory, is missing. In the said circumstances, there is no assurance that the sample drawn from the contraband allegedly seized by PW2 from the appellant had infact reached the Chemical Examiner for analysis. In the said circumstances, it has to be held that the prosecution failed to establish that the appellant committed the offence under Sec. 55 (a) of the Abkari Act. Consequently, the verdict of guilty, conviction and sentence passed by the court below cannot be sustained. In the result, this Crl. Appeal stands allowed setting aside the Crl.Appeal No. 485 of 2011 -: 7 :- conviction and sentence passed by the court below under Section 55 (a) of the Abkari Act and the appellant is acquitted for the said offence. Sd/-B. SUDHEENDRA KUMAR, JUDGE. Ani/ 26-01-2015 /true copy/ P.S. To Judge