Majeed, S/O Mammu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** **CRL.A NO. 1419 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 65/2005 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA, KOZHIKODE** ## **APPELLANT:** **MAJEED, S/O. MAMMU, MANATTY HOUSE, NEERCHAL, KANNUR-3.** **BY ADVS. PULIKKOOL ABUBACKER ZUBAIR PULIKKOOL** ## **RESPONDENT:** **STATE OF KERALA REP. BY S.I. OF POLICE, EDACHERY POLICE STATION(CRIME NO,28/03), THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI M C ASHI-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2021,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1419 OF 2007** **2** ## **K.BABU, J.** =================== **Crl. A. No. 1419 of 2007** =================== Dated this the 28[th] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 18.07.2007, passed by the learned Additional District & Sessions Judge, Vadakara in SC.No.65/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act. 3. The prosecution case is that on 18.01.2003 at about 07.00 p.m., the accused was found at the railway station road, Mahe in possession of 24 bottles of Indian Made Foreign Liquor in contravention of the provisions of the Abkari Act. 4. After completion of the investigation, the final report was submitted against the accused for the offence punishable **CRL.A NO. 1419 OF 2007** **3** under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate, Vadakara. The case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty and therefore, he came to be tried by the trial court. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P8 and MOs 1 to 6. 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 was 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 **CRL.A NO. 1419 OF 2007** **4** the accused is guilty of the offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 1[1] /2 years and to pay a fine of Rs. 1 lakh. 7. Heard 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 contended that, the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence was eventually subjected to the analysis in the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that, sufficient materials are there to establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed **CRL.A NO. 1419 OF 2007** **5** against the accused/appellant are sustainable or not. 11. PW1, the Sub Inspector of police, Edachery police station detected the offence. PW1 gave evidence that on 18.01.2003 in the evening the police team led by him was on patrol duty. They reached near Mahe railway station road where they found the accused carrying a 'big shopper' and a plastic cover. On inspection PW1 found 24 bottles of Port Bridge fine brandy, each of containing 180 ml capacity and six 375 ml bottles containing the same brand of liquor. The accused was arrested at 19.10 hours. PW1 seized the contraband substance from the possession of the accused in the presence of the witnesses and collected four 375 ml bottles as sample and sealed the same. 12. PW2, the Assistant Sub Inspector who had accompanied by PW1 in the search and seizure, supported the prosecution case. PW3, an independent witness, admitted his signature in Ext.P6 scene mahazar. PW4, an attestor to Ext.P4 **CRL.A NO. 1419 OF 2007** **6** seizure mahazar, partly supported the prosecution. PW7 conducted initial part of the investigation. PW5 completed the investigation and submitted the final report. PW6, the property clerk of the Judicial First Class Magistrate Court, Vadakara deposed that he had received the properties including the bottles containing sample on 22.01.2003. 13. The learned counsel for the appellant/accused submitted that, the prosecution has not satisfactorily explained the delay in the production of the properties before the Court. PW6 gave evidence that the properties including the sample were produced before the Court only on 22.01.2003. Ext.P5, the property list, supports this version. The seizure was effected on 18.01.2003. The delay of 5 days in the production of properties before the Court has not been satisfactorily explained by the detecting officer. 14. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi v. State** **CRL.A NO. 1419 OF 2007** **7** ## **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.” (Emphasis supplied)_ 15. The Division Bench held that the 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. 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. 16. The learned counsel for the accused also relied on the following circumstances to substantiate his contentions; **CRL.A NO. 1419 OF 2007** **8** a) The detecting Officer (PW1) failed to give evidence as to the nature and description of the seal affixed on the bottles containing the sample. b) Ext. P4 seizure mahazar, is also silent regarding the nature and description of the seal used by the detecting officer. c) The specimen impression of the seal has not been produced before the Court. 17. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and _**Krishnadas v. State of Kerala**_ (2019 KHC 191), this Court held that the Detecting Officer who draw the sample has to give evidence as to the nature of the seal affixed on the bottles containing the sample and the nature of the seal used shall be mentioned in the seizure mahazar. It was further held that the specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding **CRL.A NO. 1419 OF 2007** **9** note, so as to enable the Court to satisfy the genuineness of the sample produced in the court. In the instant case, the failure of the detecting officer in producing the specimen of the seal used before the Court and also the non-mentioning of the nature of the seal in the seizure mahazar, which is the contemporaneous document evidencing seizure and drawing of sample, create doubt on the genuineness of the sample produced before the court. 18. Ext.P8 is the copy of forwarding note which contains the seal of Judicial First Class Magistrate, Vadakara as against the space for sample seal. The specimen of the seal used by the detecting officer is not mentioned in the forwarding note. The specimen of the seal has not been forwarded to the Chemical Examiner so as to verify the genuineness of the sample received in the laboratory. 19. When the specimen of the seal affixed on the bottles containing the sample is not produced before the Court and **CRL.A NO. 1419 OF 2007** **10** forwarded to the Chemical Examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the bottles containing the sample, no evidentiary value can be given to the chemical analysis report and it cannot be concluded that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused, reached the hands of the Chemical Examiner without any tampering (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 20. In the instant case, there is nothing to show that the specimen seal was provided to the Chemical Examiner for verification. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. 21. The resultant conclusion is that no evidentiary value can be given to Ext.P7 chemical analysis report. **CRL.A NO. 1419 OF 2007** **11** 22. 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. 23. 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 : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 24. 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 **CRL.A NO. 1419 OF 2007** **12** absence of link evidence and other circumstances discussed above. 25. 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 55(a) 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** LU