Madhavan Kotherimeethal v. State (Criminal Appeal No. 1670 of 2007)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 ``` ## **`CRL.A NO. 1670 OF 2007`** ``` AGAINST THE JUDGMENT IN CC 698/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT:`** ``` MADHAVAN KOTHERIMEETHAL, KAVUNTHARA AMSOM KAVIL DESOM,, KOYILANDY, PERINTHALMANNA. BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH ``` ## **`RESPONDENT:`** ``` STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY SR PUBLIC PROSECUTOR SMT REKHA.S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ..2.. ``` CRL.A NO. 1670 OF 2007 ``` ## **JUDGMENT** Aggrieved by the judgment dated 28.07.2007 passed by the Additional Sessions Court, Fast Track [Adhoc-II], Kozhikode in Sessions Case No.698/2005, the accused has preferred this appeal. The appellant 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. One Lakh. 2. The prosecution case is that on 29.08.2004 at 2.15 p.m, the accused was found in possession of 3 litres of illicit arrack at Kavil Desom 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 the Sessions Court from where it was made over to the ..3.. ``` CRL.A NO. 1670 OF 2007 ``` 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, 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 Sri. M. Shaju Purushothaman, the ..4.. ``` CRL.A NO. 1670 OF 2007 ``` learned counsel 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 challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (i) The delay in the production of the properties including the sample has not been properly explained by the prosecution. - (ii) The various officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 9. The seizure and arrest were on effected - 29.08.2004 by the Preventive Officer, Excise Range, ..5.. ``` CRL.A NO. 1670 OF 2007 ``` Balussery, [PW1]. PW5, the Excise Inspector, Excise Range Office, Balussery deposed that the properties including the sample were produced before the Court on 31.08.2004. The prosecution has not offered any explanation for the delay in the production of the properties including the sample before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 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.” 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 explanation for the delay when there is delayed ..6.. ``` CRL.A NO. 1670 OF 2007 ``` production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. The sample remained in the custody of the property clerk of the Court till 09.09.2004. Ext.P5, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 09.09.2004 of JFCM-I, Perambra and the sample was delivered in the laboratory by Shri. K.K.Padmanabhan , an Excise Guard. Neither the Property Clerk of the Court nor Shri. K.K.Padmanabhan who delivered the sample in the laboratory was examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of the Property Clerk of the Court and the Excise Guard Shri. K.K.Padmanabhan is fatal to the prosecution. This view is fortified by the ..7.. ``` CRL.A NO. 1670 OF 2007 ``` decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314]. 13. In the present case as the prosecution has failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 14. In **Baburaj v. State of Kerala** [2021 (6) KHC 92], this Court held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 15. In the present case, the prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized from the place of occurrence. ..8.. ``` CRL.A NO. 1670 OF 2007 ``` In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offence alleged; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE**