Ravi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** **CRL.A.No.421 OF 2007** **AGAINST THE JUDGMENT IN SC 193/2001 DATED 22-09-2006 OF ADDITIONAL SESSIONSCOURT (ADHOC)-III, THALASSERY** ## **APPELLANT/ACCUSED:** **RAVI, S/O. KRISHNAN, AGED 32 YEARS THAYYIL HOUSE,, KOTTIYOOR AMSOM, CHUNKAKUNNU,, POTTANTHODU.** **BY ADVS. SRI.M.K.SUMOD SRI.KAUSER EDAPPAGATH** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-072020, THE COURT ON 02-07-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.421 OF 2007** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.A. No. 421 of 2007** ----------------------------------------------------Dated this the 2[nd] day of July, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No.193/2001 on the file of the Court of the Additional Sessions Judge, Thalasserry. 2. The prosecution case is that, on 07.11.2000, at about 11:40 hours, near the Government Ayurveda Hospital at the place Chunkakunnu, PW3 Sub Inspector found the appellant/accused having in his possession a can containing two litres of arrack. 3. The trial court framed charge against the appellant/accused for the offence punishable under Section 8(2) of the Abkari Act. The appellant/ accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P8 documents and MO1 and MO2 material objects . No evidence was adduced by the accused. 5. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous **CRL.A.No.421 OF 2007** **3** imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard. Perused the records. 8. PW3 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW4 is the Sub Inspector who conducted the investigation of the case. 9. PW1 and PW2 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. 10. Ext.P7 is the chemical examination report received in respect of the samples sent for analysis. It shows that the two samples forwarded for analysis contained 33.79% and 33.59% by volume of ethyl alcohol. 11. On perusing the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult to sustain the conviction entered against the accused. The reasons are as follows. 12. PW3 has given evidence that he seized the can containing the liquid from the possession of the accused and that he took two **CRL.A.No.421 OF 2007** **4** samples of the liquid and that he sealed the sample bottles and the can containing the residue and affixed label, bearing his signature and also the signature of the witnesses and the accused, on the sample bottles and the can. There is also recital to that effect in Ext.P1 seizure mahazar. 13. Ext.P5 is the property list prepared by PW3 for producing the material objects before the court. The description of the articles given in Ext.P5 property list does not show that there was any seal or label on the can produced before the court and that there was no label on the sample bottles. Therefore, there is no assurance that the very same can allegedly seized by PW3 from the possession of the accused and the very same samples allegedly drawn by PW3 at the spot of the occurrence were produced before the court as per Ext.P5 property list. It follows that, there is also no assurance that Ext.P7 chemical examination report relates to the samples of liquid allegedly drawn by PW3 at the spot of the occurrence. ## 14. 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 **CRL.A.No.421 OF 2007** **5** sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". 15. The alleged occurrence was on 07.11.2000. Ext.P5 property list shows that PW3 Sub Inspector had produced the samples and the can before the court on 12.11.2000. The delay of five days in producing the samples before the court is not explained by PW3. He has stated on cross-examination that the properties were in his safe custody till they were produced before the court. This statement made by PW3 does not explain the reason for the delay in producing the material objects before the court. 16. 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 court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without **CRL.A.No.421 OF 2007** **6** unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. ## 17. In **Hanif Khan @ Annu Khan v. Central Bureau of Narcotics : 2019 SCC OnLine SC 1810** , the Supreme Court has observed as follows: _“The delay in the production of the seized sample coupled with the signature on the seal being illegible, to our mind creates a serious doubt with regard to the prosecution case. There is no credible evidence that the FSL sample produced related to the very same contraband stated to have been seized from the appellant. PW-6 in his crossexamination, did not offer any reasonable explanation why the sample seized from the appellant and deposited in the Malkhana could not be produced in the Court except after a long gap of one year. His explanation that he had several important works can hardly be considered sufficient, if not, any justification for the same. …........... There can hardly be any difference between a case of non-production of a sample and the production of a sample doubtful in its identity in being co-related to what was seized from the accused. In both the cases, it will become doubtful if the FSL report is with regard to the very sample seized from an accused.”_ 18. There is also no evidence as to how and in what condition the samples were kept at the police station till they were produced before the court. **CRL.A.No.421 OF 2007** **7** 19. When there is delay in producing the samples of the contraband substance in the court and when the evidence is that they were kept in the police station, the prosecution has to adduce evidence to show as to how and in what conditions the samples were preserved at the police station (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). 20. There is also another circumstance which would indicate that the occurrence had not taken place in the manner alleged by the prosecution. PW3 has given evidence that he arrested the accused at the spot of the occurrence at 11:50 hours. Ext.P2 is the arrest memo prepared by PW3 on arresting the accused. The date and time of the arrest of the accused are shown in Ext.P2 arrest memo as 07.11.2000 at 11:40 hours. Ext.P4 is the first information report registered by PW3 on returning to the police station from the spot of the occurrence. It shows that it was at 12:45 hours on 07.11.2000 that the case against the accused was registered as Crime No. 156/2000 of Kelakam Police Station. However, Ext.P2 arrest memo allegedly prepared by PW3 at the spot of the occurrence at 11:40 hours on 07.11.2000 shows the crime number of the case which was registered at 12:45 hours on the same day. The prosecution has not explained this anomaly. **CRL.A.No.421 OF 2007** **8** 21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See **Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134** and **Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48).** When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See **Shyam Bharia v. State of Madhya Pradesh: 2005 Cri.L.J 1907** ). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See **K. Kalyani v.** **CRL.A.No.421 OF 2007** **9** ## **State : MANU/TN/1070/2019** ). 22. At this juncture, it is to be noted that there is only the uncorroborated testimony of PW3 regarding the occurrence. When the documents prepared by PW3 with regard to the occurrence contradict his evidence before the court, implicit reliance cannot be placed upon such evidence to enter a conviction against the accused. 23. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the appellant/ accused by the trial court cannot be sustained. 24. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The appellant/accused 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 **CRL.A.No.421 OF 2007** **10**