Rajesh S/o Gopinathan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 CRL.A NO. 886 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 159/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA,** ## **APPELLANT/S:** **RAJESH S/O GOPINATHAN, PUTHANPARAMBU HOUSE, VELIYANADU PANCHAYAT, VELIYANADU, ALAPPUZHA.** **BY ADVS. C.A.CHACKO C.M.CHARISMA N.A.SHAFEEK** ## **RESPONDENT/S:** **STATE OF KERALA** **SI OF POLICE RAMANKARY, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.M.C.ASHI-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 886 OF 2007** **2** ## **K.BABU, J.** =================== **Crl. A. No. 886 of 2007** =================== Dated this the 29[th] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 24.04.2007, passed by the Additional Sessions Judge, Fast Track Court-II, Alapuzha in SC.No.159/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Sections 8(2) and 55(a) of the Abkari Act. 3. The prosecution case is that on 16.12.2003 at about 08.30 p.m., the accused was found possessing 2 litres of arrack in a can having capacity of 5 litres along with a glass for selling the arrack on the eastern side of Kidangara-Krishnapuram road in front of the house of one Thankappan, Edappally house, Ward No. 1, Veliyanad Panchayat, Veliyanad village. 4. After completion of the investigation, the final report **CRL.A NO. 886 OF 2007** **3** was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate, Ramankary. The case was committed to the Sessions Court, Alappuzha from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the aforesaid offences. The accused pleaded not guilty and therefore, he came to be tried by the trial court. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P8 and MOs 1 and 2. 6. 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 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. The trial court, after hearing the arguments addressed from both sides, found that **CRL.A NO. 886 OF 2007** **4** the accused is guilty of offences under Sections 8(2) and 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs. 1 lakh for the offence under Section 8(2) of the Abkari Act. No separate sentence was imposed for the offence under Section 55(a) of the Abkari Act. 7. Heard Sri.C. A. Chacko, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that, the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that, sufficient materials are there to establish the charges against the accused. 10. The only point that arises for consideration is whether **CRL.A NO. 886 OF 2007** **5** the conviction entered and the sentence passed against the accused/appellant are sustainable or not. 11. PW4, the Sub Inspector of police, Ramankary police station was on patrol duty on 16.12.2003. The police team led by PW4, on getting reliable information that the accused was engaged in the sale of arrack near City Bridge at Veliyanad proceeded to the place of occurrence. PW4 found the accused carrying a 5 litre can and holding a glass. PW4 inspected the can in possession of the accused. He ascertained that, it contained illicit arrack. The contraband substance found in the possession of the accused was seized by PW4 as per Ext.P1 seizure mahazar. The accused was arrested. PW4 collected 180 ml of arrack in a bottle and sealed the same. 12. PWs1 and 2, the independent witnesses, did not support the prosecution. PW3, the police constable who had accompanied PW4 in the search and seizure, supported the prosecution. 13. The learned counsel for the appellant/accused **CRL.A NO. 886 OF 2007** **6** contended that, the prosecution failed to establish that the very same contraband substance allegedly recovered from the scene of occurrence was produced before the Court and forwarded to the Chemical Examiner's Laboratory for analysis. 14. The learned counsel relied on the inordinate delay in the production of the properties including the sample before the Court and the absence of link evidence to connect the accused with contraband substance, to substantiate his contentions. 15. The learned counsel for the appellant/accused submitted that, the prosecution has not satisfactorily explained the delay in the production of the properties before the Court. PW4 gave evidence that the properties including the sample were produced before the Court only on 05.01.2004. Ext.P6, the property list, supports this version. The seizure was effected on 16.12.2003. The delay in the production of properties before the Court has not been satisfactorily explained by the detecting officer. **CRL.A NO. 886 OF 2007** **7** 16. On the question of delay in the 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 production of the property.” (Emphasis supplied)_ 17. 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 the 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. 18. Relying on _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and _**Krishnadas v. State of**_ **CRL.A NO. 886 OF 2007** **8** _**Kerala**_ (2019 KHC 191), the learned counsel for the appellant/accused contended that, the absence of evidence regarding the nature and description of the seal used is fatal to the prosecution. 19. The detecting officer has not given evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. Ext.P1 seizure mahazar is silent regarding the nature of the seal used by the detecting officer. 20. In _**Bhaskaran v. State of Kerala and another**_ (2020 KHC 5296), while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus: _“21. 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 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_ **CRL.A NO. 886 OF 2007** **9** _sample produced in the court (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle 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 bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied)_ 21. The prosecution has not adduced any evidence as to the date on which the sample was forwarded to the Chemical Examiner's Laboratory for analysis. Ext.P8 certificate of chemical analysis shows that, the sample was forwarded to the Chemical Examiner's Laboratory as per letter dated 05.01.2004 of the Judicial First Class Magistrate, Ramankary. Ext.P8 further shows that, the **CRL.A NO. 886 OF 2007** **10** sample was received in the laboratory on 07.01.2004 through Sri. Santhosh Kumar, a Police Constable. Going by the available evidence, the bottle containing the sample remained in the possession of the Sri. Santhosh Kumar from 05.01.2004 to 07.01.2004. The delay in the production of sample before the laboratory, after obtaining the same from the Court, has not been satisfactorily explained. 22. 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. 886 OF 2007** **11** 23. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court it cannot be concluded that the sample reached the laboratory in a tamperproof condition. 24. The non-explanation of the delay in bringing the sample to the laboratory after obtaining it from the Court causes suspicion on the genuineness of the sample reached the laboratory. 25. PW4, the detecting officer gave evidence that he was not aware of the name of the police official who obtained the sample and other properties from him and produced before the Court. The sample remained in the possession of the police official, who received it from PW4, whose name is not known, and the property clerk of the Court. It also remained in the possession of Sri. Santhosh Kumar, the police constable, who delivered the sample to the laboratory. It is evident that, the sample was handled by several persons. The prosecution failed **CRL.A NO. 886 OF 2007** **12** to examine those witnesses/officials to establish that the sample remained tamper-proof while in their custody. The prosecution ought to have examined those witnesses/officials to establish the tamper-proof handling of the sample till it reached the laboratory. 26. The inevitable effect of this omission 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], _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569)}. 27. 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 the benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 28. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital **CRL.A NO. 886 OF 2007** **13** aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. He is acquitted of the charges. He is set at liberty. The appeal is allowed as above. **Sd/K.BABU, JUDGE** LU