Ramachandran v. State

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **CRL.A NO. 2123 OF 2006** **AGAINST THE JUDGMENT DATED 19.10.2006 IN SC.NO.130/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** **RAMACHANDRAN, S/O.KUNJAN, ELKKALAYIL VEEDU, 40 ACRE BHAGOM, PUTTADI KARA, ANAKKARA VILLAGE.** **BY ADVS. GRASHIOUS KURIAKOSE (SR.) PRANOY K.KOTTARAM** ## **RESPONDENT/COMPLAINANT:** **STATE -S.I. OF POLICE, VANDANMEDU POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2123 OF 2006** 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.2123 of 2006** **------------------------------------** Dated this the 4[th] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 19.10.2006, passed by the Additional Sessions Court, (Adhoc-II), Thodupuzha, in SC.No.130/2004. 2. By the impugned judgment the accused was convicted of the offences punishable under Sections 55(i) and 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 18.12.2001 at about 05.30 p.m., the accused was found in possession of 400 ml of arrack in a 750 ml bottle. He was also carrying an empty 5 liter Can and a glass tumbler. The offence was detected by the SI of Police, Vandanmedu. 4. After completion of the investigation, final report was submitted against the accused for the offences **CRL.A NO. 2123 OF 2006** **==> picture [7 x 9] intentionally omitted <==** punishable under Sections 55(a), 55(i) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Nedumkandam. 5. The case was committed to the Sessions Court, Thodupuzha, from where it was made over to the Trial Court. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a), 55(i) and 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 6. The evidence for the prosecution consists of the oral evidence of PWs. 1 to 3, Exts.P1 to P8 and MO.1. 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 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. **CRL.A NO. 2123 OF 2006** 4 The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences under Sections 55(i) and 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.Pranoy K. Kottaram, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence: - (a) The inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. (b) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence **CRL.A NO. 2123 OF 2006** 5 was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. 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. PW3, the SI of Police, Vandanmedu Police Station, on 18.01.2001, was on patrol duty. When he reached IMS colony bhagom at about 05.20 p.m., the accused was found selling illicit arrack. The accused was carrying 400 ml of illicit arrack in a 750 ml bottle. He was also carrying an empty 5 liter Can and a glass tumbler. PW3 seized the contraband substance found in the possession of the accused. He also seized a sum of Rs.310 from the possession of the accused. PW3 prepared Ext.P2 Seizure Mahazar. **CRL.A NO. 2123 OF 2006** 6 13. PWs 1 and 2, the independent witnesses, did not support the prosecution case. 14. The learned counsel for the appellant/accused contended that the inordinate delay in the production of the properties including the sample before the court has not been satisfactorily explained by the prosecution. 15. PW3 has given evidence that the properties including the sample were produced before the court only on 21.12.2001. The explanation given by PW3 is that lack of sufficient Police force in the Police Station caused the delay in the production of the properties before the court. The accused and the other contemporaneous documents were produced before the court on 19.12.2001 itself. 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 **CRL.A NO. 2123 OF 2006** 7 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 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. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's **CRL.A NO. 2123 OF 2006** 8 laboratory: - (a) PW3, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Ext.P2, seizure mahazar, is silent regarding the nature and description of the seal said to have been used. - (c) There is no convincing evidence to show that the - specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner's laboratory. - (d) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 19. PW3 gave evidence that he had sealed the bottle containing the sample at the scene of occurrence. But he has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P2, seizure mahazar, does not contain any **CRL.A NO. 2123 OF 2006** 9 narration as to the nature and description of the seal affixed on the bottle containing the sample. 20. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and **Krishnadas v. State of Kerala** (2019 KHC 191), this Court held that 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. 21. Ext.P7 is the covering letter dated 14.08.2002 sent by the Judicial First Class Magistrate Court, Nedumkandam while forwarding the sample to the Chemical Examiner's laboratory for analysis. In Ext.P7, there is no mention that the specimen impression of the seal had been forwarded to the Chemical Examiner's laboratory. 22. The specimen impression of the seal shall be produced before the court and forwarded to the Chemical Examiner's laboratory so as to enable the court to satisfy the genuineness of the sample produced in the **CRL.A NO. 2123 OF 2006** **==> picture [13 x 9] intentionally omitted <==** court and forwarded to the Chemical Examiner's laboratory. (vide: **Achuthan v. State of Kerala** [ILR 2016 (2) Ker. 145]). 23. 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, was 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. (vide: **Rajamma v. State of Kerala** [2014 (1) KLT 506]) 24. Ext.P7 would further show that the sample was received by a Police Constable by name of K.C.John from the court on 14.08.2002. Ext.P8, certificate of chemical analysis, would show that the sample reached the Chemical Examiner's laboratory only on 16.08.2002. It has come out **CRL.A NO. 2123 OF 2006** **==> picture [13 x 9] intentionally omitted <==** in evidence that the sample remained in the custody of the property clerk of the court while it was in the court and in the custody of Sri.K.C.John, the Police official concerned for 3 days. Neither the property clerk of the court nor Sri.K.C.John was examined as witness by the prosecution to prove that while in their custody the seal was not tampered with. 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. 25. The Apex court in **State of Rajasthan v. Daulat Ram** [(1980) 3 SCC 303] held that where the sample changed several hands before it reached the Chemical Examiner's laboratory, the prosecution has to establish, by examining those who had the custody of sample, that the sample was not tampered with while in the custody of officials concerned. 26. Ext.P8, the certificate of chemical analysis, **CRL.A NO. 2123 OF 2006** **==> picture [13 x 9] intentionally omitted <==** would show that the sample reached the Chemical Examiner's laboratory on 16.08.2002, but the same was analysised only on 05.12.2003. 27. The learned counsel for the appellant contended that the delay in analysis of the sample, which has not been explained satisfactorily, 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.” 28. In the instant case, the delay of more than one year in the analysis of the sample remains unexplained. **CRL.A NO. 2123 OF 2006** 13 29. 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. 30. 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: **Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 31. 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. **CRL.A NO. 2123 OF 2006** **==> picture [13 x 9] intentionally omitted <==** 32. 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 offences punishable under Sections 55(i) and 8(2) of the Abkari Act. He is acquitted of the charges levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS