High Court of KeralaSingle Judge2014-03-03Appeal Allowed; Conviction set aside; Acquittal...

Rajendran v. State of Kerala

Case / Petition Number:CRL.A.No.459 of 2005 (A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-03-03
Court Decision / Holding: The appeal is allowed. Conviction of the appellant in S.C.No.1230 of 2002 on the file of the III Additional Sessions Court, Kollam for an offence punishable under Section 8(2) of the Abkari Act is set aside. The appellant shall be set free, if not wanted in any other case. His bail bond is cancelled. All pending interlocutory applications are dismissed.
Final Disposition: Appeal Allowed; Conviction set aside; Acquittal of the appellant

Parties to the Case

Appellants / Petitioners

Rajendran, S/o Govindan

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri B. Mohanlal

Counsels for Respondents

• Public Prosecutor Shri K.K. Rajeev

Case Synopsis & Summary

Rajendran, the accused and appellant in CRL.A. No. 459 of 2005 (A), challenged his conviction under Section 8(2) of the Abkari Act by the III Additional Sessions Judge, Kollam, as upheld by the Sessions Court. The prosecution case rested on a law-and-order patrol on 27 February 2001 when PW3, a Sub-Inspector, and PW2 allegedly found the accused near a road with a 3.5 litre can and a glass, surrounded by prospective buyers who fled on sensing the police. The can allegedly contained illicit arrack and sale proceeds were recovered; exhibition of Exts. P1 (mahazar) and P2 (FIR) supported the narrative, and Ext. P3 listed the property. Four witnesses testified, with PW1, an independent witness, failing to support the prosecution, while PW2 corroborated PW3’s account and PW4, the Investigating Officer, testified about the investigation and the property handover. The defence argued the evidence was insufficient and raised serious concerns about chain of custody: the contraband allegedly remained with PW3 for nearly a month, no forwarding note or judicial order for returning the item, and no proof of tamper-proof handling or linking the seized contraband to the Chemical Examiner’s analysis. The High Court held that the prosecution’s chain-of-custody deficiencies and the lack of proper proof undermine the nexus to the laboratory, and thus allowed the appeal, setting aside the conviction and releasing the appellant.

Provisions of Law Cited

Section 8(2) of the Abkari ActSection 374(2) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel contended that the prosecution evidence is grossly insufficient to sustain a conviction under Section 8(2) of the Abkari Act. PW1, the independent witness, did not support the case; PW3, though the detecting officer, failed to establish an uninterrupted chain of custody for the contraband worth nearly a month, from seizure to forwarding for analysis. The lack of a forwarding note, absence of a judicial order authorizing custody of the evidence, and the inability to conclusively link the seized contraband to the Chemical Examiner’s analysis create a fatal lacuna. Counsel argued the possibility of false implication—exemplified by the suggestion that Rajan, a known bootlegger, influenced the accused. The defense emphasised that without a secure, tamper-proof chain-of-custody, the conviction cannot stand, citing the necessity of reliable connection between seizure, analysis, and result.

Contentions of Respondents

The Public Prosecutor argued that the evidence, including PW3’s testimony, Exts. P1–P3 (mahazar, FIR, and property list), and the recovery of illicit arrack with sale proceeds, sufficed to sustain the conviction. The prosecution maintained that the court below’s assessment supported the link between the contraband and the accused and that the lapses noted did not vitiate the conviction. The State relied on the reasoning of the lower court to contend that PW4’s testimony could fill certain gaps, arguing that the proximate sequence of events established possession of illicit arrack by the accused and the sale proceeds.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ravi v. State of Kerala	2011(3) K.L.T 353	Positive	Cited to underscore the principle that proper chain-of-custody and linking evidence to the laboratory analysis is essential; the court indicates this dictum applies to the present case in highlighting the lacuna in custody and its impact on the reliability of the evidence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935 CRL.A.No. 459 of 2005 (A) -------------------------- SC 1230/2002 of III ADDITIONAL SESSIONS COURT, KOLLAM CP 74/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM APPELLANT(S)/ACCUSED:: ----------------------- RAJENDRAN, S/O. GOVINDAN, H.NO.148, H & C COMPOUND COLONY, PALLITHOTTAM CHERRY KOLLAM WEST VILLAGE, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENT(S)/COMPLAINANT:: --------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl. Appeal No.459 of 2005** **-----------------------------------------------Dated this the 3[rd] day of March, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. Accused in S.C No.1230/2002 on the file of the IIIrd Additional Sessions Judge, Kollam was convicted for an offence punishable under Section 8(2) of the Abkari Act. He is challenging the conviction and sentence. 2. The prosecution case, in short, is as follows : On 27-02-2001 while PW3 and his party were engaged in law and order patrol duty found the appellant at about 11.40 a.m standing by the side of a road with 3.5 litre can in his possession. He had been encircled by certain persons. This sight evoked suspicion in the mind of the detecting officer. On seeing the police party, the persons who were standing close to the appellant ran away. On examination, it was found that the appellant possessed illicit arrack intended to be sold and the sale proceeds were also recovered from the accused. After **Crl. Appeal No.459 of 2005 2** completing the formalities, the appellant was arrested and produced before the court on the next day. 3. In order to establish the prosecution case, four witnesses were examined and four documents were marked. MO's 1 and 2 are the material objects. There was no defence evidence. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Learned counsel for the appellant submitted that the evidence adduced by the prosecution is highly insufficient to convict the appellant for the alleged offence. My attention was drawn to the oral evidence of PW's 1 to 3. PW3 is the detecting officer. He was working as Sub Inspector of Police, Kollam East Police station. On 27-02-2001 he was on law and order patrol duty along with PW2. In the course of their duty, PW3 got **Crl. Appeal No.459 of 2005 3** information that the appellant was vending illicit arrack. On the basis of the information, they proceeded to the place and found the accused standing in the middle of certain persons and he was holding a can and a glass. On seeing the police party, the prospective customers ran away. Accused was restrained and on examination, it was revealed that he possessed illicit arrack in the can. Material objects are the can and the glass held by the accused. PW3 deposed that currency notes, the sale proceeds of illicit arrack, were also recovered from the accused. According to PW3, he prepared Ext.P1 mahazar from the place and sample was taken and properly sealed. Accused was arrested. He went to the police station with the accused and articles and registered Ext.P2 First Information Report. The defence counsel put questions to PW3 that one Rajan, a habitual bootlegger was enemical to the accused and at his instance the accused was **Crl. Appeal No.459 of 2005 4** falsely implicated in the crime. This suggestion was denied by PW3. 6. PW1 is the independent witness who failed to support the prosecution. However, he admitted signature on Ext.P1 and his explanation was that two Police Officers asked him to sign on a white paper. 7. PW2 also supported the case of PW3. He also deposed regarding the detection and other formalities conducted by the detecting officer. 8. PW4 is the Investigating Officer. He was working as Additional Sub Inspector of Police, Kollam East Police Station. Immediately after detection and registration of the case, investigation of the case was handed over to PW4 by PW3. He produced the property list, Ext.P3. It is seen from Ext.P3 property list that as there was no space to keep the material **Crl. Appeal No.459 of 2005 5** objects, Item No.1 ( can **+** illicit arrack) was returned for safe custody to Sub Inspector of Police, Kollam East Police Station (PW3). Learned Magistrate allowed the request of the court staff and can with its contents were returned to the detecting officer. In respect of this aspect, PW4 was cross examined. He would depose that on 28-02-2001 the articles were returned to him as oral direction. This statement of PW4 is per beyond comprehension. No court can return a property to the investigating officer without passing a Judicial Order. Therefore, this statement of PW4 cannot be accepted. Endorsement on the reverse of Ext.P3 would belie the deposition of PW4 in this regard. It is seen that the articles were in the possession of PW3 from 27-02-2001 till 26-03-2001. No attempt was made by the prosecution to prove this fact through PW3. In fact PW4 has no definite idea as to who was in possession of the contraband for **Crl. Appeal No.459 of 2005 6** nearly a month before sending it for analysis. Therefore, this great infirmity in the prosecution case would shake its edifice. Further, learned counsel for the appellant contended that no forwarding note was produced or marked in this case to show that the same contraband allegedly seized from the appellant was sent up for analysis. In these circumstances, the dictum in _**Ravi v. State of Kerala ( 2011(3) K.L.T 353)**_ would squarely apply. There is no link to connect the alleged recovery of contraband from the accused and that the same reached the Chemical Examiner's Laboratory by change of hands in a tamper proof condition. Learned Public Prosecutor relied on the reasoning of the court below to find that PW4's testimony can be accepted to fill up the lacuna. I am unable to accept the reasons stated by the court below that the evidence tendered by PW4 could fill up the lacuna in the prosecution case. In fact, the **Crl. Appeal No.459 of 2005 7** lack of adduction of evidence on the side of PW3, who held the property for about a month is fatal to the prosecution case. Therefore, the conviction of the appellant is not maintainable. In the result the appeal is allowed. Conviction of the appellant in S.C.No.1230 of 2002 on the fie of III Additional Sessions Court, Kollam for an offence punishable under Section 8(2) of the Abkari Act is hereby set aside. The appellant shall be set free, if not wanted in any other case. His bail bond shall be cancelled. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk