Mohananan Madappadu Veedu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** **CRL.A NO. 877 OF 2008** **AGAINST THE ORDER/JUDGMENT CP 40/2004 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS , (MUNSIFF MAGISTRATE COURT) ADIMALI SC 303/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA APPELLANT/ACCUSED:** **MOHANAN MADAPPADU VEEDU, PANICKNAKUDI KARA,, KONNATHADI VILLAGE.** **BY ADV SRI.JACOB SEBASTIAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM., REP. S.I. OF POLICE, VELLATHOOVAL POLICE STATION.** **SMT. REKHA.S (SR.P.P)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, ALONG WITH WP(C).15720/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.877 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.877 of 2008** --------------------------------------Dated this the 10[th] day of November, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 25.03.2008, passed by the Third Additional Sessions Court (Adhoc-1), Thodupuzha in S.C.No.303/2005, the accused has preferred this appeal. The appellant/accused was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 15.06.2002 at 5.15 p.m., the accused was found possessing 4 litres of country made arrack in a 10 litre can for the purpose of sale at Panikikankudi on the side of Kampilikandom Muniyara Public Road 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 Trial Court. On the Crl.A No.877 of 2008 3 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 7 and proved Exts.P1 to P15 and MO 1. 5. After the closure of the prosecution evidence, 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 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. On the side of defence DWs 1 to 2 were examined and Exts D1 to D3 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri.Jacob Sebastian, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.877 of 2008 4 7. The judgment of conviction and sentence is challenged on the following grounds : a) The prosecution failed to establish the identity of the person who was allegedly carrying the contraband substance at the place of occurrence. b) The prosecution failed to show that the contraband substance seized from the place of occurrence was subjected to Chemical Analysis. 8. Learned counsel for the appellant contended that the prosecution failed to establish the identity of the person who was found in possession of the can containing the contraband substance. The case of the prosecution is that the police team headed by PW6, then the Sub Inspector of Police, Vellathooval Police Station found a man carrying a black can. They had seen the person carrying the can at an approximate distance of 25 metres. On seeing the police party, the person carrying the can ran away from the scene. According to PW6, he has previous acquiantence with the person who carried the can. PW6 stated that the man who carried the can was the appellent herein who was the accused in another crime. PW6 Crl.A No.877 of 2008 5 prepared Ext.P1 mahazar at the scene of occurrence. PW6 had not narrated the features of the man who ran away from the scene of occurrence. No identifying features were recorded in Ext.P1. The accused was later arrested on 17.06.2002. The learned counsel for the appellant contended that Ext.P1 was not prepared at the scene of occurrence. It is contended that the Ext.P6 FIR and Ext.P1 mahazar were produced before the Jurisdictional Magistrate only on 17.06.2002 after arresting the accused. None of the independent witnesses supported the prosecution case. The incorporation of the number of the crime registered against the petitioner is in respect of a previous crime. The time of preparation of Ext.P1 is also doubtful. Going by the evidence of the PW6 and other official witnesses, they had only a fleeting glimpse of the person who had carried the can at the time when he ran away from the scene of occurrence. Therefore, the identification of the accused by PW6 is not acceptable. 9. Ext.P7 list of properties would show that the properties including the samples were produced before the Court only on 17.06.2002. The delay in production of Crl.A No.877 of 2008 6 properties including the sample before the Court has not been satisfactorily explained by the prosecution. 10. On the question of delay in the production of properties, a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KHC 121]** 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.” (emphasis supplied) 11. 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 production of the property. 12. 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 Crl.A No.877 of 2008 7 conclusion that tampering with the sample could not be ruled out. 13. The properties including the sample was received by the Junior Superintendent of the Court on 17.06.2002. It remained in the custody of the property clerk. The sample was forwarded to the laboratory as per letter dated 13.08.2002 of Judicial First Class Magistrate, Adimaly. The sample reached the laboratory on 14.08.2002. The police constable No.1352, the property clerk of the Court, the Junior superintendent and the police official who delivered the sample in the laboratory were not examined. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314).** 14. Yet another aspect that requires consideration is the delay in the analysis of sample. Though the sample reached the laboratory on 14.8.2002, it was subjected to analysis only Crl.A No.877 of 2008 8 on 25 .03.2004. On the question of delay in the analysis of the sample, this Court in **Krishnadas v. State of Kerala (2019 KHC 191)** held thus: _“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 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.”_ 15. In the instant case, the delay of more than two years in analysing the sample has not been explained by the prosecution. As the prosecution failed to show that the contraband substance seized from the scene of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 16. The prosecution was unable to establish the link connecting the accused with the contraband substance seized Crl.A No.877 of 2008 9 and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of the link evidence as discussed above. 17. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU JUDGE** AP