Muraleedharan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943** **CRL.A NO. 1499 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 548/2001 OF ADDITIONAL** **SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),** ## **KOTTARAKKARA** ## **APPELLANT/S:** **MURALEEDHARAN NAIR,S/O.RAGHAVAN NAIR SANTHOSH BHAVANIL, CHERUVAKKAL MURI, ILLAMADU VILLAGE, KOLLAM DIST.** **BY ADV SRI.K.SANIL KUMAR** ## **RESPONDENT/S:** **STATE OF KERALA, REP.BY S.I.OF POLICE REP.BY SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION, THROUGH, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.A No.1499/2006** -2- **K.BABU, J. ========================= Crl.A No.1499/2006 ========================== Dated this the 9[th] day of July, 2021** ## **JUDGMENT** **Aggrieved by the judgment dated 22.06.2006, passed by the learned Additional Sessions Court (Abkari), Kottarakkara in S.C.No.548/2001, the accused has preferred this appeal.** **2. The trial court convicted the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act.** **3. The prosecution case is that on 15.02.2000 at 5.30 p.m., the accused was found in possession of 5 litres of arrack in a jerry can having a capacity of 10 litres, for sale, at Vellavoorkunnu within the** ## **Crl.A No.1499/2006** -3- **jurisdiction of Pooyappally Police Station.** **4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act, before the Judicial Magistrate of First Class-II, Kottarakkara. The case was committed to the Sessions Court, Kollam from where it was made over to the learned Additional Sessions Court (Abkari), Kottarakkara. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid** **offences.** ## **Crl.A No.1499/2006** -4- **5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P5 and MOs1 to 3.** **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 is 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 learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences punishable under Sections 55(a) and 55(i) of the Abkari Act and he was convicted** ## **Crl.A No.1499/2006** -5- **thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years each, and to pay a fine of Rs.1,00,000/- each, under Sections 55(a) and 55(i) of the Abkari Act.** **7. Heard the learned counsel appearing for the appellant/accused and the learned Senior Public Prosecutor appearing for the respondent.** **8. The learned counsel for the appellant/accused submitted as follows:** **a) The inordinate delay in the production of the properties before the court has not been satisfactorily explained.** **b) The prosecution failed to establish that the articles said to** **Crl.A No.1499/2006** -6- **have been seized from the possession of the accused eventually reached the Chemical Examiner's laboratory.** **9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused.** **10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.** **THE POINT** **11. PW4, the Sub Inspector of Police,** **Pooyappally detected the offence. He has given evidence that on 15.2.2000, while he was on patrol duty, the accused was found in possession of a jerry can having a capacity** ## **Crl.A No.1499/2006** -7- **of 10 litres at Vellavoorkunnu road. PW4 seized the jerry can from the possession of the accused and found that it contained 5 litres of illicit arrack. According to PW4, the accused was engaged in the sale of arrack at the place of occurrence. PW4 has stated that he collected sample from the arrack seized in two bottles. He has given evidence that the sample bottles were sealed and labelled at the place of occurrence. PW4 prepared Ext.P1 seizure mahazar. The accused was arrested at the spot. PW4 registered Ext.P2 FIR on the basis of Ext.P1 seizure mahazar. He completed investigation and submitted final report against the accused. PWs1 and 2, the independent witnesses examined to prove the** ## **Crl.A No.1499/2006** -8- **incident proper, did not support the prosecution case. PW3, the Police Constable, who had accompanied PW4, supported his version.** **12. The learned counsel for the appellant/accused, submitted that the properties allegedly seized from the possession of the accused and mentioned in Ext.P4 were produced before the court only on 1.03.2000. The inordinate delay in the production of the properties has not been satisfactorily explained. PW4, the detecting officer, has given evidence that he had produced the properties before the court on 16.02.2000 itself, but those were returned. I have carefully perused the records made available before the court, especially** ## **Crl.A No.1499/2006** -9- **Ext.P4 property list, which is silent about the production of properties on 16.02.2000 as averred by PW4. On the other hand, Ext.P4 makes it clear that the properties were produced before the court only on 1.3.2000. The explanation offered by PW4 for the delayed production of the properties is unacceptable in the absence of any corroborating materials.** **13. On the question of delay in the production of the properties, the Division Bench of this Court in Ravi v. State of** ## **Kerala & another (2011(3) KHC 121)held thus:** **“We therefore, answer the reference as follows:** **8(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** ## **Crl.A No.1499/2006** -10- **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)** **14. The Division Bench held that 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 production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with** ## **Crl.A No.1499/2006** -11- ## **the samples could not be ruled out.** **15. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's laboratory. The learned counsel has relied on the following circumstances to** **substantiate his contentions:** **i. The detecting Officer has not given evidence as to the nature and description of the seal affixed on the sample bottles.** **ii. Ext.P2 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration** ## **Crl.A No.1499/2006** -12- **as to the nature and description of the seal affixed on the sample bottles.** **iii. The copy of the forwarding note, which contains the specimen impression of the seal used, has not been produced before the court.** **16. I have gone through the depositions of the witnesses and Ext.P1 mahazar. PW4, the detecting officer and the other official witnesses who were present at the scene of occurrence have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. Ext.P1, seizure mahazar, is also silent regarding the specimen impression of the seal stated to have been affixed on the sample bottle. The detecting officer, who** ## **Crl.A No.1499/2006** -13- **has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar (vide: Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191).** **17. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the specimen of the seal was provided to the Chemical Examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the sample bottles. There is absolutely no evidence as** ## **Crl.A No.1499/2006** -14- **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. The copy of the forwarding note, which contains the specimen impression of the seal affixed on the sample bottles and the name of the official with whom the sample bottles were entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in the case. In Ramachandran v. State of Kerala (2021(1) KLT 793), while dealing with a case in which forwarding note was not produced and marked, this Court held thus:** **“Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the** ## **Crl.A No.1499/2006** -15- **sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”** ## **18. In Rajamma v. State of Kerala (2014(1) KLT 506), this Court held thus:** **“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 PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so 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 . (Emphasis supplied)** ## **19. In view of the fact that there is no** ## **Crl.A No.1499/2006** -16- **evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P5 chemical analysis report.In Vijay Pandey v. State of U.P (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated.** **20. It is well 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** ## **Crl.A No.1499/2006** -17- **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 [(1980) 3 SCC 303], Ravi v. State of Kerala & another (2011(3) KHC 121), Valsala v. State of Kerala (1993 KHC 798).** **21. 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 benefit of doubt arising from the absence of link evidence as discussed above.** ## **Crl.A No.1499/2006** -18- **22. 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 offences punishable under Sections 55(a) and 55(i) of the Abkari Act. He is acquitted of the charges. He is set at liberty.** **The Crl.Appeal is allowed as above.** **Sd/K. BABU JUDGE** ## **STK**