P. M. Balan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943 CRL.A NO. 606 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 123/2005 OF ADDITIONAL SESSIONS COURT (ADHOC-II) KASARAGODE, KASARGOD** ## **APPELLANT/S:** P.M.BALAN AGED 54 YEARS S/O.THIMMANNAN, RESIDING AT ANIKKADY, KODAKKAD VILLAGE. BY ADVS. SHRI.VIVEK.P.K SMT.NEETHU PREM SRI.RAHUL SASI ## **RESPONDENT/S:** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. M.C. ASHI, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 606 OF 2008 2 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 20.02.2008 passed by the Additional Sessions Judge (Adhoc-II), Kasargod in S.C. No. 123/2005. By the impugned judgment, the appellant was convicted of the offence punishable under Section 55(g) of the Abkari Act. 2. The prosecution case is that on 29.08.2002, at 12 noon, the accused was found in possession of 10 litres of wash in a plastic pot for the purpose of manufacturing illicit arrack near his residence. The offence was detected by the Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Kasargode. 3. After completion of the investigation, the final report was submitted for the offence punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate-I, Hosdurg. The case was committed to CRL.A NO. 606 OF 2008 3 the Sessions Court, Kasargode, 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 55(g) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence for the prosecution consists of the oral evidence of PW1 to PW7, Exhibits P1 to P8, and M01. 5. After closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. Trial Court heard the matter under Section 232 Cr.P.C and found that there was 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. On the side of defence, DW1 was examined, and Exhibit D1 was marked. CRL.A NO. 606 OF 2008 4 6. The learned trial Court after hearing the arguments addressed on both sides found that the accused is guilty of the offence under Section 55(g) of the Abkari Act, and he was convicted thereunder. He was sentenced to undergo Simple Imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 7. Heard Sri. Vivek P.K, the learned counsel appearing for the accused and Sri. M.C. Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the accused contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor submitted that the prosecution has well established the charge against the accused. CRL.A NO. 606 OF 2008 5 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. PW1, the detecting Officer, testified that on 29.08.2002, while he was on patrol duty along with other Excise Officials, he found the accused in possession of a plastic pot containing 10 litres of wash near his residence. PW1 seized the contraband substance from the possession of the accused and arrested him. He prepared Exhibit P2 seizure Mahazar. PW1 collected 500 ml of wash in a 750 ml bottle and sealed the same to be used as sample. PW2, a Preventive Officer who had accompanied PW1 in the search and seizure, supported the prosecution case. PWs 3 and 4, the independent witnesses, did not support the prosecution. PW5, a Village Assistant attached to the Village Office concerned, gave evidence that he had CRL.A NO. 606 OF 2008 6 prepared Exhibit P4 sketch of the scene of occurrence. PW6, the then Excise Inspector, Neeleswaram, registered Crime No. 19/2002 against the accused. PW7 conducted the investigation and submitted final report. 12. The learned counsel for the accused relied on the following circumstances to contend that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory:- _a) The delay in the production of properties has not been satisfactorily explained by the prosecution._ _b) The nature and description of the seal stated to have been affixed on the bottle containing the sample has not been brought out in evidence._ _c) The delay in the production of the sample after receiving the same from the_ CRL.A NO. 606 OF 2008 7 _Court has not been explained._ _d) The inordinate delay in subjecting the sample for chemical analysis remains unexplained._ 13. The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. The nature of the seal used has not been mentioned in Exhibit P2 seizure mahazar. The specimen impression of the seal had not been produced before the Court at the time of production of the sample. The detecting officer has to give evidence regarding the nature of the seal used. The seizure mahazar, the contemporaneous document evidencing seizure and drawing of sample at the scene of occurrence, shall contain the nature of the seal used. In the absence of specimen of the seal used in the sample, the court before which the sample was produced would be unable to ascertain the genuineness of the sample brought before it. {See CRL.A NO. 606 OF 2008 8 _**Bhaskaran K. v. State of Kerala and another**_ **(2020 KHC 5296)** , _**Krishnadas v. State of Kerala**_ **(2019 KHC 191)** and in **Achuthan v. State of Kerala [ILR 2016 (2) KER 145]** } 14. Exhibit P7 would show that the properties including the sample were received in the court only on 02.09.2002, though the seizure was effected on 29.08.2002. There is no explanation for the delay in the production of the sample before the court. 15. The 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. The unexplained delay in the production of the sample would lead to the conclusion that tampering with the sample could not be ruled out. {see **Ravi v. State of Kerala & another [2011 (3) KHC 121]** } CRL.A NO. 606 OF 2008 9 16. Exhibit P8, certificate of chemical analysis, would show that as per letter dated 10.08.2002 of the Judicial First Class magistrate -I, Hosdurg one sealed 750 ml bottle containing 500 ml of dark brown turbid liquid alleged to be wash was received in the Chemical Examiner's Laboraraty through an Excise Guard by name K. Ummer Kutty on 25.09.2002. 17. Prosecution has not adduced any evidence as to the date on which the botlle containing the sample was handed over to the Excise Guard by name Sri. Ummer Kutty. In the absence of any contra evidence, this Court has to come to an inference that on 10.08.2002, the sample was forwarded to the Chemical Exmainer's Laboratary through the Excise Guard concerned. It is relevant to note that the sample reached the laboratary only on 25.09.2002, after a lapse of more than a month. This delay has not been explained by the prosecution. This 10 CRL.A NO. 606 OF 2008 is a suspicious circumstance, the benefit of which must go to the accused. While dealing with a similar fact situation, this Court in _**Viswanadhan v. State of Kerala**_ **[2016 (3) KHC 38]** held thus: _“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ CRL.A NO. 606 OF 2008 11 18. Exhibit P8 would further show that though the sample was received in the laboratary on 25.09.2002, the same was analysed only on 26.08.2003. While dealing with the question of delay in analysis of sample, this Court in _**Krishnadas v. State of Kerala**_ **[2019 KHC 191]** held as follows:- _“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.”_ In the instant case, the delay of almost a year in the CRL.A NO. 606 OF 2008 12 ## analysis of sample remains unexplained. 19. It has come out in evidence that the sample remained in the custody of the property clerk of the court, the official who received the sample from the court and the official who delivered the same to the laboratary. None of these officials were examined by the prosecution to prove that while in their custody the seal was not tampered with. The inevitable effect of this ommission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period – a fact which had to be proved affirmatively by the prosecution. (Vide : _**State of Rajasthan v. Daulat Ram**_ **[AIR (1980) SC 1314].** 20. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself 13 CRL.A NO. 606 OF 2008 and that the sample seized and that tested have to be corelated. 21. It is 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 Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused. 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 offence punishable under Section 55(g) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. **Sd/-** **K. BABU JUDGE** avs