Omanakuttan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** # **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** **CRL.A.No.644 OF 2007** **AGAINST THE JUDGMENT OF SC NO.293/2001 DATED 27-03-2007 OF ADDITIONAL SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA** ## **APPELLANT/ACCUSED:** **OMANAKUTTAN, S/O. VIJAYAN, POIKAYIL PUTHEN VEEDU, CHEERANKAVU, EZHUKONE MURI, KOTTARAKARA.** **BY ADV.SRI.ALEXANDER GEORGE** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 THE SUB INSPECTOR OF POLICE EZHUKONE POLICE STATION, KOTTARAKKARA** **SRI SANTHOSH PETER - SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON 07.08.2020 DELIVERED THE FOLLOWING:** Crl.A.No.644/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.644 of 2007 -----------------------------------------Dated this the 7[th] day of August, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.293/2001 on the file of the Court of the Additional Sessions Judge, Kottarakara. 2. The prosecution case is that, on 06.05.1999, at about 20:45 hours, in the property of one Chandramathy at the place Cheerankavu, PW3 Sub Inspector found the appellant /accused in possession of a can containing three litres of arrack and a glass. 3. The trial court framed charge against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the offences and he claimed to be tried. 4. The prosecution examined PW1 to PW3 and marked Exts.P1 to P5 documents and MO1 to MO3 material objects. No Crl.A.No.644/2007 3 evidence was adduced by the accused. 5. The trial court found the accused guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of three months each for the aforesaid offences and directed that the sentences shall run concurrently. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard. Perused the records. 8. PW3 is the Sub Inspector who detected the offence. He has given evidence with regard to the occurrence in detail. PW2 is the police constable who was in the police party led by PW3. His evidence corroborates the testimony of PW3 with regard to the material particulars of the occurrence. Crl.A.No.644/2007 4 9. PW1 is the independent witness examined by the prosecution to prove the occurrence. He did not support the prosecution case. He denied having seen the incident. 10. Ext.P5 is the chemical examination report received in respect of the sample which was sent for analysis. It shows that the sample of liquid contained 28.78% by volume of ethyl alcohol. 11. On a perusal of the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult to sustain the conviction entered against the appellant/accused. The reasons are as follows. 12. The alleged occurrence was on 06.05.1999. Ext.P2 is the property list by which PW3 produced the material objects in the court. It shows that it was only on 17.06.1999 that the properties, including the sample, were produced in the court. There was a delay of 41 days in producing the properties in the court. PW3 would say that he had produced the properties before the court on 07.05.1999 but they were returned from the court Crl.A.No.644/2007 5 for want of space in the court to store them there and the properties were resubmiited in the court on 17.06.1999. He has also stated that the properties were in his safe custody till 17.06.1999. This explanation given by PW3 for the delay in producing the properties before the court is not at all convincing. If the properties had been actually produced in the court on 07.05.1999 and if they were returned for safe custody from the court, there would have been endorsement made by the court to that effect in the property list. The initials of the Magistrate on Ext.P2 property list shows that the properties, including the sample, were produced in the court only on 17.06.1999. 13. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that 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. It Crl.A.No.644/2007 6 was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 14. In the instant case, there has been undue delay in producing the can containing the liquid and the samples in the court and the explanation for the delay offered by PW3 is not convincing. Therefore, chances of tampering with the samples cannot be ruled out. 15. There is also another lacuna in the prosecution evidence. The copy of forwarding note, which should have been prepared by the investigating officer for sending the sample for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable Crl.A.No.644/2007 7 doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). Absence of forwarding note in evidence means absence of evidence connecting the sample tested in the laboratory and the sample allegedly drawn at the spot of the occurrence by the detecting officer. ## 16. In **Vijay Pandey v. State of U.P: AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself._ The sample seized and that tested have to be corelated". Crl.A.No.644/2007 8 17. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable under Section 55(a) or 55(i) of the Abkari Act. The prosecution has to further establish that the liquid seized was contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 18. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the appellant/accused is entitled to be acquitted. Crl.A.No.644/2007 9 19. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Sections 55(a) and 55(1) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offences and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge