Rajan S/o Sankaran Kariyattil v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **CRL.A.No.1667 OF 2005** **AGAINST THE JUDGMENT IN SC 315/2004 DATED 11-08-2005 OF ADDITIONAL SESSIONS COURT (FAST TRACK-I), PALAKKAD** ## **APPELLANT/ACCUSED:** **RAJAN S/O SANKARAN KARIYATTIL VEEDU, VADASSERY, KERALASSERY,, PALAKKAD DIST.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.M.V.BIPIN SRI.LIJU. M.P** ## **RESPONDENT:** **STATE OF KERALA** **REP. BY THE SUB INSPECTOR OF POLICE,, KONGAD POLICE STATION, PALAKKAD DISTRICT,, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI C K PRASAD-PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2020, THE COURT ON 04-06-2020 DELIVERED THE FOLLOWING:** **Crl.A. No. 1667 of 2005** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.A. No. 1667 of 2005** ----------------------------------------------------Dated this the 04[th] day of June, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No. 315/2004 on the file of the Court of the Additional Sessions Judge, Palakkad. 2. The prosecution case is that, on 10.10.2003, at about 16:30 hours, at the road in front of the house of one Sheela at the place Vadassery in Keralassery Panchayath, PW1 Sub Inspector found the appellant having in his possession a can containing two litres of arrack. 3. The appellant pleaded not guilty to the charge framed by the trial court under Section 55(a) of the Abkari Act. Thereupon, the prosecution examined PW1 to PW3 and marked Exts.P1 to P7 documents and material objects MO1 and MO2. No evidence was adduced by the appellant/accused. 4. The trial court found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.1,00,000/- and in **Crl.A. No. 1667 of 2005** **3** default of payment of fine, to undergo simple imprisonment for a period of three months. 5. The verdict of guilty and conviction recorded against him and the sentence imposed on him by the trial court are challenged by the accused in this appeal. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. Perused the records. 7. PW1 is the Sub Inspector who detected the offence. PW2 is the police constable who was in the police party led by PW1. They have given evidence regarding the occurrence. PW3 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. 8. Ext.P7 is the chemical examination report in respect of the samples of liquid which were sent to the laboratory for analysis. It shows that ethyl alcohol of different strength was detected in the samples. 9. Learned counsel for the appellant has challenged the conviction entered against the appellant on the following grounds: (1) The evidence of PW1 and PW2, the police officials, regarding the seizure of MO1 can containing arrack from the possession of the appellant, is not reliable and trustworthy. (2) There was undue delay ## **Crl.A. No. 1667 of 2005** in producing the can and the samples before the court and the delay is not satisfactorily explained by the prosecution. Therefore, there was chance of tampering with the samples. (3) The property list prepared for producing the material objects before the court is not marked in evidence and the link between the samples taken at the spot of the occurrence and the samples tested in the laboratory is not established. (4) At any rate, the evidence is insufficient to find that the very same samples drawn from the liquid contained in the can allegedly seized from the possession of the appellant were sent for chemical examination. 10. PW1 Sub Inspector has given evidence that he saw the accused standing at the road with a can in his hand and by tasting and smelling the liquid contained in the can, he was convinced that the liquid was arrack. He has also given evidence that he took three samples of liquid from the can and seized the sample bottles and the can containing the residue and affixed labels, bearing his signature and also signature of the accused and the witnesses, on the sample bottles and the can. PW2 has also given evidence more or less to the same fact. 11. Neither Ext.P1 seizure mahazar nor Ext.P3 first information report contains a recital that it was by the taste and smell of the liquid **Crl.A. No. 1667 of 2005** **5** contained in the can that PW1 was satisfied that the liquid was arrack. Exts.P1 and P3 documents also do not mention that label bearing the signature of PW1 and the accused and the witnesses was affixed on the sample bottles and the can. In view of these vital omissions in the records prepared with regard to the incident, it is not safe to place implicit reliance upon the evidence of PW1 and PW2 regarding the seizure of MO1 can containing arrack from the possession of the appellant. 12. The occurrence was on 10.10.2003. According to PW1, he produced the material objects before the court only on 15.10.2003. PW1 has not given any reason or offered any explanation for the delay in producing the samples and the can before the court. 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 was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the **Crl.A. No. 1667 of 2005** **6** 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 prosecution has offered no explanation for the delay. Therefore, chance of tampering with the samples or the can containing the liquid allegedly seized from the possession of the accused cannot be ruled out. 15. There is also another lacuna in the prosecution evidence. The property list prepared by PW1 for producing the samples and the can before the court was not marked in the case. In the absence of the property list marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence were produced before the court in a tamper proof condition and the very same samples were sent for chemical analysis. The chain of link evidence is broken by the absence of the property list. 16. It is also to be noted that there is absolutely no evidence in the case as to what seal was used by PW1 for sealing the sample **Crl.A. No. 1667 of 2005** **7** bottles. Ext.P1 seizure mahazar or Ext.P3 first information report does not mention what was the seal used by PW1. ## 17. In **Vijay Pandey v. State of Uttar Pradesh : 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 co-related". 18. 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 Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other 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 **Crl.A. No. 1667 of 2005** **8** was the very same sample drawn from the liquid seized from the possession of the accused. 19. The above mentioned vital aspects have not been considered by the trial court while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the appellant/accused by the trial court, cannot be sustained. The appellant/accused is entitled to be acquitted. 20. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court for the offence punishable under Section 55(a) of the Abkari Act is set aside. The appellant is found not guilty of the aforesaid offence 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** lsn