Ponnayyan Sugathan S/o Ponnayyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **CRL.A NO. 961 OF 2008** **AGAINST THE JUDGMENT DATED 26.03.2008 IN SC.NO.616/2003 OF ADDITIONAL SESSIONS COURT (ADHOC-III), THALASSERY, KANNUR** ## **APPELLANT/ACCUSED:** **PONNAYYAN SUGATHAN S/O.PONNAYYAN, PALLICHADATH HOUSE, VADAKKANCHERRY AMSOM, PANAMBALLI, KUNDUKAD P.O., TRISSUR, THRISSUR DISTRICT.** ## **BY ADV SRI.R.SURENDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.961 of 2008 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.961 of 2008** **------------------------------------** Dated this the 13[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 26.03.2008, passed by the learned Additional Sessions Judge (Adhoc-III), Thalassery in S.C.No.616/2003, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 58 of the Abkari Act. 3. The prosecution case is that on 08.12.2001 at about 06.15 p.m., the accused was found in possession of 9 bottles, each containing 750 ml of IMFL of the brand 'Delight XXX Rum' and 30 bottles, each containing 180 ml of IMFL of the brand 'New Janatha Brandy' at New Bus Stand, Thalassery. 4. Final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Thalassery. Crl.A.No.961 of 2008 3 5. The case was committed to the Sessions Court, Thalassery from where it was made over to the Additional Sessions Court (Adhoc-III), Thalassery. On appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 3 and Exts.P1 to P7 and MOs.1 to 3. 7. 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 was guilty of offence under Sections 58 of the Abkari Act and Crl.A.No.961 of 2008 4 he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.R.Surendran, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction: - (a) Prosecution has not satisfactorily explained the delay in production of the properties before the court. - (b) The prosecution failed to establish that the articles said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. - (c) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. Crl.A.No.961 of 2008 5 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 11. 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** 12. PW1, the Additional Sub Inspector of Police, Thalassery Police Station, detected the offence. PW1 has given evidence that on 08.12.2001 at about 6.15 p.m., the accused was found in possession of the contraband articles at New Bus Stand, Thalassery. PW1 seized the contraband substance in the possession of the accused as per Ext.P2 seizure mahazar. The accused was arrested from the spot by PW1. He had taken 2 bottles from the articles seized from the possession of the accused as sample and sealed the same. 13. PW3, an independent witness, did not support the prosecution case. PW2, the Additional Sub Inspector of Crl.A.No.961 of 2008 **==> picture [7 x 9] intentionally omitted <==** Police, Thalassery Police Station conducted investigation and submitted the final report. 14. The learned counsel for the appellant/accused submitted that the delay in production of the articles allegedly seized from the possession of the accused has not been satisfactorily explained by the prosecution. Ext.P4, the property list, shows that the articles allegedly seized from the place of occurrence were produced before the Court only on 12.12.2001. PW1, the detecting officer, has not offered any explanation for the delay in production of the properties before the Court. 15. On the question of delay in production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] held thus: “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 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 Crl.A.No.961 of 2008 7 ## production of the property.” (Emphasis supplied) 16. 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 the samples could not be ruled out. 17. The learned counsel for the appellant further 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. 18. The learned counsel relied on the following circumstances to substantiate his contentions: (a) PW1, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Crl.A.No.961 of 2008 8 - (b) Ext.P2, seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (c) The copy of the forwarding note, (Ext.P6) is silent regarding the specimen seal. - (d) Ext.P6, copy of the forwarding note, is also silent regarding the name of the Police official with whom the sample was sent to the Chemical Examiner's laboratory. 19. I have gone through the deposition of PW1, the detecting officer, and Ext.P2 seizure mahazar. PW1, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P2, seizure mahazar, is also silent regarding the specimen of the seal stated to have been affixed on the bottle containing the sample. 20. The detecting officer, who 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 Crl.A.No.961 of 2008 9 seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) **, Krishnadas v. State of Kerala** (2019 KHC 191)] 21. The learned counsel for the appellant/accused further contended that there is nothing to show that the specimen 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 bottle. There is absolutely no evidence as 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. 22. While dealing with a fact situation in which there was no evidence to convince the court that the sample seal or specimen impression of the seal has been Crl.A.No.961 of 2008 10 ## provided to the Chemical Examiner 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”. 23. In view of the fact that there is no 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.P7 chemical analysis report. 24. Ext.P7, certificate of chemical analysis, shows that the sample reached the laboratory on 24.12.2001. But the same was analysed only on 15.02.2003. The learned Crl.A.No.961 of 2008 11 counsel for the appellant contended that the delay in analysis of the sample, which has not been satisfactorily explained is also fatal to the prosecution. While dealing with the question of delay in analysis of the 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.” 25. In the instant case, the delay of more than one year in analysing the sample remains unexplained. 26. Ext.P6, copy of the forwarding note, is silent as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. 27. The learned Magistrate failed to mention the Crl.A.No.961 of 2008 12 date on which he affixed his signature on Ext.P6 forwarding note. In such a situation it was imperative for the prosecution to examine the Thondi Clerk of the court or the Police official who received the sample from the court to prove the tamper proof despatch of the sample to the laboratory. 28. 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 co-related. 29. 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 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] **, Sathi v. State of Kerala** [(2007) 1 KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). Crl.A.No.961 of 2008 13 30. 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. 31. 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 58 of the Abkari Act. He is acquitted of the charge. He is set at liberty. Any amount deposited by the accused as per the interim orders of this Court shall be disbursed as per law. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS