MANOJ @ MANOJ KUMAR v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 CRL.A.No. 960 of 2007 (D) -----------------------------AGAINST THE JUDGMENT IN SC 274/2002 of ADDL. SESSIONS COURT (ADHOC)II, KALPETTA DATED 07-05-2007 -------- APPELLANT/ACCUSED: ------------------------- MANOJ @ MANOJ KUMAR, PANAPPADI HOUSE, KALLOOR, NOOLPUZHA, WAYANAD DISTRICT. BY ADVS. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI RESPONDENT/COMPLAINANT/SATE: ---------------------------------------- 1. THE SUB INSPECTOR OF POLICE, - S.BATHERY POLICE STATION, (CRIME NO.467/2000). 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.960 of 2007 -----------------------------------------------Dated this the 8[th] day of April, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Kalpetta, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ rigorous imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents. 3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Sulthan Bathery Police Station, and his party were on patrol at about 8.20 p.m. on 27-10-2000. While so, they got information that the Crl. Appeal No.960 of 2007 -2- appellant was selling arrack in the paddy field in front of his house at Muthanga. Therefore, PW1 and his party reached that place when the appellant was seen carrying a plastic cover in his right hand. Seeing the police party, the appellant attempted to flee away. But, the police party stopped him there. On examining the cover carried by the appellant, 13 small covers containing arrack manufactured in Karnataka were found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P1 Arrest Memo. The covers containing arrack were seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. PW1 had taken three packets out of those thirteen packets and collected the contents of those three packets in a 375 ml. bottle as sample. Thereafter, PW1 and his party reached Sulthan Bathery Police Station with the appellant, properties and the records. PW1 registered Crime No.467 of 2000 of that Police Station in respect of the occurrence. Ext.P3 is the FIR thus drawn by PW1. He had produced the appellant along with Crl. Appeal No.960 of 2007 -3- the Remand Report before the Judicial First Class Magistrate’s Court in charge of the Judicial First Class Magistrate’s Court-I, Sulthan Bathery. He had also produced the properties along with Ext.P4 List of Property before the Judicial First Class Magistrate’s Court-I, Sulthan Bathery. Ext.P5 is a copy of the Forwarding Note produced by him before the court. The investigation of the case was conducted by PW6, the Additional Sub Inspector of Police, Sulthan Bathery Police Station. He had gone to the place of occurrence and prepared Ext.P7 Scene Mahazar. He had questioned the witnesses and recorded their statements. He had entrusted the investigation file to PW1. The Final Report was filed before the court by PW1. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kalpetta, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-II, Kalpetta. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant Crl. Appeal No.960 of 2007 -4- pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P7 and M.O.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. and recorded his statements. He denied the incriminating circumstances shown against him. Ext.D1 was marked on the side of the defence through PW1. No other evidence had been adduced by the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the appellant was found in possession of arrack at about 8.30 p.m. on 27-10-2000 and he was arrested by PW1 then and there and the contraband was seized under Ext.P2 Seizure Mahazar. But, the contraband including the sample was produced by PW1 before the court only on 10-11-2000. It can Crl. Appeal No.960 of 2007 -5- be seen from Ext.P4 List of Property that the contraband was produced before the court only on 10-11-2000. PW1 admitted also that the properties were produced before the court only on 10-11-2000. None of the official witnesses examined in this case has offered any explanation for the delayed production of the properties before the court. PW1 deposed that the properties were kept by him under his safe custody. This claim is not a valid explanation for occurring inordinate delay in producing the properties before the court. It is in the deposition of PW1 itself that the distance from Sulthan Bathery Police Station to the court is only 200 metres. Then, what was the reason prevented PW1 from producing the properties before the court without delay? As already stated, no explanation has been offered by the prosecution for the same. It can be seen from Ext.P3 FIR that that document was produced before the court on 28-10-2000. Therefore, if PW1 wanted to produce the properties before the court without delay, he could have done so on 28-10-2000 itself. But that was not done. Crl. Appeal No.960 of 2007 -6- Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of even a single day is fatal to the prosecution case. In this case, as already found, there is absolutely no explanation for the inordinate delay that occurred in producing the properties before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 6. Ext.P6 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner’s Laboratory, Kozhikode. It is reported in this document that ethyl alcohol Crl. Appeal No.960 of 2007 -7- was detected in the sample and the sample of liquid contained 17.24% by volume of ethyl alcohol. It is also stated in Ext.P6 that the seals on the bottle were intact and found tallied with the sample seal provided. Whose sample seal was so provided? It is the prosecution case that PW1 has taken 3 packets of arrack and their contents were collected in a 375 ml. bottle as sample. It is also his case that a Forwarding Note was produced before the court for subjecting the sample to chemical analysis. Ext.P5 is a copy of the Forwarding Note. It is in the deposition of PW1 that the Forwarding Note was produced before the court only on 18-11-2000. Therefore, there was inordinate delay in producing the Forwarding Note also before the court. The sample impression of the seal claimed to have affixed on the sample bottle is not seen affixed in Ext.P5. Whether the sample seal was affixed in the original of Ext.P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P5, it has to be presumed that such sample seal was Crl. Appeal No.960 of 2007 -8- not affixed in the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband and the details of the case. The sample impression of the seal affixed on the sample bottle also should find a place in the Forwarding Note. Therefore, as already stated, the absence of sample seal in Ext.P5 is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. PW1 admitted that a sample seal was not affixed in Ext.P5. But, claimed that the sample seal was affixed in the original Forwarding Note. A bald statement made by PW1, without the support of Ext.P5, cannot be accepted for finding that a specimen seal of the seal affixed on the bottle was affixed in the original Forwarding Note. Moreover, the property clerk who was dealing with the properties in the court was not examined in Crl. Appeal No.960 of 2007 -9- this case. Had he been examined, some relevant light would have been available as to whether or not a specimen seal was affixed in the Forwarding Note. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 7. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows: - “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so Crl. Appeal No.960 of 2007 -10- provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” The Division Bench of this Court in **Ravi v. State of Kerala** (supra) has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner’s Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the Crl. Appeal No.960 of 2007 -11- benefit of doubt. 8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act. 9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.960 of 2007 -12-