Murali s/o Kochu Narayanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 1678 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT IN SC 963/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM ``` ## **`APPELLANT:`** ``` MURALI S/O KOCHU NARAYANAN PUTHAN THARAYIL HOUSE, PULIYOOR VANCHI THEKKUM, MURI, THODIYOOR VILLAGE, KARUNAGAPPALLY,, KOLLAM DISTRICT. BY ADVS. SRI. K.SIJU SMT.RESHMI T.M. SRI.PRATHEESH.P ``` ## **`RESPONDENT:`** ``` STATE OF KERALA EXCISE INSPECTOR, EXCISE RANGE, KARUNAGAPPALLY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ## **`OTHER PRESENT:`** ``` BY SHRI RAJESH,(sR. GOVT PLEADER VIGILANCE) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl A No.1678 of 2008 **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 02.08.2008, passed by the Additional Sessions Court, (Adhoc – I), Kollam in Sessions Case No.963 of 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 24.12.2003 at 5.30 pm the accused was found in possession of 4 litres of arrack at Murukalayam Junction, 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 Crl A No.1678 of 2008 **==> picture [20 x 9] intentionally omitted <==** the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the 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 P9 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 to adduce evidence, if any, he may have in support thereof. DW1 was examined on the side of the defence. The trial Court, Crl A No.1678 of 2008 ..4.. 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.Siju Kamalasanan, the learned counsel appearing for the appellant/accused and Sri Rajesh A., the learned Senior Government Pleader 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 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:- (1)Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on Crl A No.1678 of 2008 **==> picture [20 x 9] intentionally omitted <==** the bottle containing sample. (2)The specimen of the seal was not produced before the Court to establish the genuineness of the sample. (3)There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification. (4)The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. 9. The alleged seizure was effected by the Excise Preventive Officer, Excise Range, Karunagappally. The Detecting Officer (PW1) had prepared Ext.P1 mahazar to evidence arrest and seizure. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given evidence as to the nature of the seal used. There is nothing on record to show that the specimen of the seal Crl A No.1678 of 2008 **==> picture [20 x 9] intentionally omitted <==** was produced before the Court to establish the genuineness of the sample. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for comparison and verification as to the genuineness of the seal. Ext.P8 forwarding note does not contain the nature and description of the seal used. The space meant for incorporating the specimen seal is left vacant. 10. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not Crl A No.1678 of 2008 **==> picture [20 x 9] intentionally omitted <==** produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 12. Ext.P6 property list would show that the properties including the sample were produced before the Court only on 26.12.2003, though the seizure was effected on 24.12.2003. The prosecution has not offered any explanation as to the delay in the production of the properties including the sample. 13. 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 Crl A No.1678 of 2008 ..8.. 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 production of the property. 14. 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. 15. In Ext.P8, the name of the Officer with whom the sample was forwarded is not entered. The space meant for entering the name of the Officer with whom the sample was forwarded is left vacant. The learned Crl A No.1678 of 2008 **==> picture [20 x 9] intentionally omitted <==** Magistrate who countersigned Ext.P8 forwarding note has not put the date on which he made his initials. The date on which the sample was forwarded to the laboratory was also not evident from Ext.P8. Ext.P9 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 30.12.2003 of Judicial First Class Magistrate, Karunagappally. The sample reached the laboratory on 31.12.2003 through an Excise Guard by name Sri. M.P. Sreekumar. The sample remained in the custody of the Property Clerk of the Court and the Excise Official who obtained the same from the Court and delivered the same in the Chemical Examiner’s Laboratory. None of those officials were examined to prove the tamper-proof despatch of the sample from the Court to the Chemical Examiner’s Laboratory. Non-examination of those officials is fatal to the prosecution as it failed to rule out Crl A No.1678 of 2008 **==> picture [26 x 9] intentionally omitted <==** 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]. 16. As the prosecution has failed to show that the contraband seized from the place of occurrence was actually examined in the Chemical Examiner’s Laboratory, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 17. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, Crl A No.1678 of 2008 **==> picture [26 x 9] intentionally omitted <==** - (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** kkj