Raju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **CRL.A.No.2003 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 413/2001 DATED 01-10-2007 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES), KOTTARAKKARA** ## **APPELLANT/S:** **RAJU, S/O. NARAYANA PILLAI, ANIL MANDIRATHIL, MUTTARAMURI, ODANAVATTOM, VILLAGE.** ## **SRI. ANISH ANTONY ANATHAZHATH,AMICUS CURIAE** **RESPONDENT/S:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SMT.V.SREEJA,PP.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CRL.A.No.2003 OF 2007** -2- ## **JUDGMENT** **The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.** **2. The prosecution allegation is that on 12.11.1999 at about 3.15 p.m., the appellant and the other accused in furtherance of their common intention possessed five litres of arrack in contravention of the provisions of the Abkari Act.** **3. It has been submitted at the Bar that Advocate Saju S.A. had passed away. It appears that no alternative arrangement has been made by the appellant. In the said** ## **CRL.A.No.2003 OF 2007** -3- **circumstances, this Court has appointed Advocate Shri.Anish Antony Anathazhath as Amicus Curiae to argue the case for the appellant.** **4. Heard the learned Amicus Curiae and the learned Public Prosecutor.** **5. The learned Amicus Curiae has argued that since there was unexplained delay in producing the contraband and the samples before the court, the appellant is entitled to benefit of doubt. It has been further argued by the learned Amicus Curiae that since no forwarding note was produced or marked in this case, the appellant is entitled to benefit of doubt.** ## **CRL.A.No.2003 OF 2007** -4- **6. Ext.P5 is the property list, whereby the contraband and the samples were produced before the court. It appears from Ext.P5 that the contraband and the samples were produced before the court only on 24.11.1999. PW4 produced the contraband and the samples before the court. He stated that he produced the contraband and the samples before the court on 15.11.1999.** **However, he was directed to keep the contraband and the samples in his custody.** **7. No endorsement is seen on Ext.P5 to the effect that the contraband and the samples were produced before the court by PW4 on 15.11.1999 as stated by PW4. It is** ## **CRL.A.No.2003 OF 2007** -5- **common knowledge that the material objects can be produced before the court only with a thondy list/properly list. If the material object is returned by the court, there will be definitely an endorsement to that effect from the Court/Magistrate concerned in the property list. Since no such endorsement is seen in Ext.P5 property list, the evidence of PW4 that he produced the contraband and the samples before the court on 15.11.1999 cannot be correct. In view of the above, it has to be held that there was unexplained delay from 12.11.1999 to 24.11.1999 in producing the contraband and the samples before the court. That apart, there is also no explanation as to why there was delay** ## **CRL.A.No.2003 OF 2007** -6- **from 12.11.1999 to 15.11.1999 in producing the contraband and the samples before the court, if at all the contention of PW4 is assumed to be correct. No evidence was also adduced with regard to the safe custody of the contraband and the samples till 15.11.1999. In the said circumstances, there is no guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the appellant. In the said circumstances, the appellant is entitled to benefit of doubt.** **8. It appears that no forwarding** ## **CRL.A.No.2003 OF 2007** -7- ## **note was produced or marked in this case.** **9. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311], the Court held thus:** **“Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized and it reached the** **CRL.A.No.2003 OF 2007** -8- **chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.”** **10. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:** **“Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending** ## **CRL.A.No.2003 OF 2007** -9- **the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.”** **11. In Ravi v. State of Kerala [2011** **(3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamperproof condition.** **12. In this case, the forwarding note was neither produced nor marked before the** ## **CRL.A.No.2003 OF 2007** -10- **Court. Ext.P5 would show that two samples were produced before the court. However, Ext.P6 would show that only one sample was received in the laboratory. Since no forwarding note was produced and marked, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper-proof condition and in the said circumstances, the conviction and sentence passed by the court below on the basis of Ext.P6 certificate of chemical analysis cannot be sustained.** **In the result, this appeal stands allowed setting aside the conviction and sentence** ## **CRL.A.No.2003 OF 2007** -11- **passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.** **Needless to state that if the appellant had already deposited any amount before the trial court pursuant to the direction of this Court, the appellant is entitled to reimbursement of the said amount from the court concerned.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** STK