PANICHI ASHOKAN & PANICHI DIVAKARAN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` CRL.A NO. 898 OF 2008 ``` ``` AGAINST THE JUDGMENT IN S.C.No.326/2003 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-III, THALASSERY C.P.No.188/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ``` ## **`KUTHUPARAMBA`** ## **`APPELLANTS/APPELLANTS 1& 2:`** ``` 1PANICHI ASHOKAN, S/O. KRISHNAN, THOLAMBRA AMSOM, PANAMBATTA DESOM, THRIKKADARIPPOYIL. ``` ``` 2PANICHI DIVAKARAN S/O.KRISHNAN, THOLAMBRA AMSOM, PANAMBATTA DESOM, THRIKKADARIPPOYIL. ``` ``` BY ADV V.BINOY RAM ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SR.PUBLIC PROSECUTOR SMT. REKHA.S. ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Criminal Appeal No.898 of 2008 ``` 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.898 of 2008 --------------------------------------Dated this the 17[th] day of June, 2022 ## JUDGMENT This appeal is directed against the judgment dated 08.04.2008 in S.C. No.326/2003 of the Additional Sessions Court (Adhoc-III), Thalassery. Accused Nos. 1 and 2 are the appellants. They were convicted for the offences punishable under Sections 55(b) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay fine of Rs.1 Lakh each. 2. The prosecution case is that on 21.08.2001 at 14.00 hrs, the appellants and the other accused (A3) were found engaged in distilling arrack on the banks of Idumba river, Pattadi in Kannur village, Kannur district. It is alleged that the appellants and the other accused possessed 22 litres of illicit arrack and 1200 litres of wash in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a), 55(b) and 55(g) 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 ``` Criminal Appeal No.898 of 2008 ``` 3 appearance of the accused charges were framed against them for the offences punishable under Sections 55(a), 55(b) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P9 and MOs 1 to 14. 5. After the closure of the evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(b) and 8(2) of the Abkari Act and convicted them thereunder. 6. Heard Sri.Binoy Ram V., the learned counsel appearing for the appellants/accused and Smt.Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: ``` Criminal Appeal No.898 of 2008 ``` 4 (i). The prosecution failed to prove the identity of the persons who allegedly possessed the contraband substances recovered from the scene of occurrence. (ii) The prosecution failed to show that the wash and liquor seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The alleged seizure was effected on 20.08.2001 by the then S.I of Police, Kuthuparamba (PW1). According to PW1, on getting reliable information that the accused were engaged in distillation of arrack on the banks of Idumba river, the Police team headed by him reached the place of occurrence at 2.00 pm. On seeing the Police party, the persons allegedly found in possession of the contraband substances jumped into the nearby river and swam across the river. They could not be arrested. The identity of the accused is under vehement challenge. According to PW1, he had previous acquaintance with accused No.1. It is pertinent to note that the name of the accused was not mentioned in Ext.P1 seizure mahazar. If PW1 had previous acquaintance with accused No.1, he could have referred his name in the seizure mahazar itself. Therefore the identification of the accused by PW1 is not acceptable. Accused No.2 was arrested on 21.08.2001, one day after the ``` Criminal Appeal No.898 of 2008 ``` 5 seizure. Ext.P1 is the seizure mahazar prepared by PW1 at the scene of occurrence. He has not narrated the features of the persons who escaped from the scene of occurrence. Admittedly, he saw the accused at a distance of 30-35 meters. Going by the evidence of PW1, he had only a fleeting glimpse of the persons who ran away from the scene. Though accused No.2 was arrested a day after the incident, in the absence of any description as to the identification of persons who escaped from the scene, the version that he was arrested after identifying the person who escaped from the previous day cannot be accepted. No test identification parade was conducted in this case. The independent witnesses did not support the prosecution case. 9. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: **Kanan and others v. State of Kerala** (AIR 1979 SC 1127)] **, Jameel v. State of Maharashtra** [AIR 2007 SC 971] **, Raja v.** ``` Criminal Appeal No.898 of 2008 ``` 6 **State by Inspector of Police** [AIR 2020 (SC) 254] **, State (Delhi Administration) v. V.C.Shukla and another** [AIR 1980 (SC) 1382] **, Mohd.Abdul Hafeez v. State of AP** [AIR 1983 (SC) 367]. So on this ground alone the prosecution must fail. 10. Though seizure was effected on 20.08.2001, the properties, including the samples were produced before the Court only on 28.08.2001 which is evident from Ext.P6 property list. The prosecution has not offered any satisfactory explanation for the delay in the production of properties including the samples before the Court. 11. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1. 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) ``` Criminal Appeal No.898 of 2008 ``` 7 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 conclusion that tampering with samples could not be ruled out. 13. Ext.P6 property list shows that the properties, including samples were received by the Junior Superintendent of the Magistrate's Court on 28.08.2001. The samples remained in the custody of the property clerk till 22.09.2001. Ext.P9 Certificate of Chemical Analysis shows that the bottles containing the samples were forwarded to the laboratory as per letter dated 22.09.2001. The samples reached the laboratory only on 23.10.2001. The custody of the samples during the period from 22.09.2001 to 23.10.2001 has not been explained by the prosecution. The property clerk, the Junior Superintendent of the Court and the Police official who delivered the bottles containing the samples in the laboratory were not examined by the prosecution. The consequence ``` Criminal Appeal No.898 of 2008 ``` 8 of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 14. Ext.P1 seizure mahazar does not contain any description of the seal stated to have been affixed on the bottles containing the samples. The specimen of the seal was not produced before the Court. The detecting officer has not given evidence as to the nature of the seal used. Ext.P8 forwarding note does not contain the specimen of the seal. The necessary conclusion is that the specimen of the seal was not forwarded to the Chemical Examiner's Laboratory to ascertain the genuineness of the samples produced before the laboratory. 15. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 16. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it ``` Criminal Appeal No.898 of 2008 ``` 9 reaches the laboratory is required to be established by the prosecution. 17. In **Sasidharan v. State of Kerala** (2007 (1) KLT 720), this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314), in **Sasidharan** (supra), this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In **Sathi v. State of Kerala** [2007 (1) ILR 718 (Ker.)], this Court reemphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In **Sathi** (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed ``` Criminal Appeal No.898 of 2008 ``` 10 properly. The ratio in **Sasidharan** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** (2011 (3) KLT 353). 18. 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. 19. 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 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. 20. In the instant case, the prosecution failed to prove that the liquor and wash allegedly seized from the place of occurrence reached the hands of the chemical analyst in a tamper-proof condition. Therefore, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. ``` Criminal Appeal No.898 of 2008 ``` 11 21. Another aspect that requires to be considered is the delay in the analysis of the sample. Ext.P9 Certificate of Chemical Analysis shows that though the sample reached the laboratory on 23.10.2001, the sample was analyzed only on 16.10.2002. On the question of delay in the analysis of the sample, in _Krishnadas v. State of Kerala_ (2019 KHC 191) this Court 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.”_ _22._ In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 23. The upshot of the above discussion is that the judgment of conviction and sentence cannot be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/K.BABU JUDGE AJ