Rejikumar @ Reji s/o Vasudevan Nair v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2020-10-16
Court Decision / Holding: In the result, the Criminal Appeal stands allowed; the conviction and sentence recorded by the trial court are set aside, and the appellant is acquitted. The bail bond is discharged, and any amount deposited pursuant to the court’s directions should be reimbursed to the appellant.
Final Disposition: Criminal Appeal allowed; appellant acquitted; bail bond discharged; reimbursement of deposited amount, if any.

Parties to the Case

Appellants / Petitioners

Rejikumar @ Reji s/o Vasudevan Nair

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• R. Bindu
• M. Sunil Kumar

Counsels for Respondents

• M.K. Pushpalatha

Case Synopsis & Summary

This is a Kerala High Court criminal appeal (CRL.A. No.702 of 2008) challenging a conviction under Section 8(2) of the Abkari Act for possession of 3 litres of illicit arrack allegedly for sale, arising from an incident on 27 January 1998. The Additional District Court‑I, Mavelikkara, had convicted the appellant on the prosecution case that contraband liquor was found in his possession around 6:30 p.m. on that date. On appeal, the defense argued that the prosecution failed to account for the unexplained delay between seizure and production of the contraband and samples (27.01.1998 to 17.02.1998), and that no forwarding note was produced to mark the linkage to the laboratory analysis, thus entitling the appellant to the benefit of doubt. The court scrutinized the delay, the absence of a safe custody record, and the lack of a forwarding note, relying on Sasidharan v. State of Kerala and Ravi v. State of Kerala to emphasize the necessity of link evidence and tamper-proof despatch of samples to the Chemical Examiner. It concluded that there is no reliable chain of custody proving that the samples tested matched the seized contraband. Consequently, the appellant’s conviction was set aside and he was acquitted; bail bond discharged, with possible reimbursement of any deposited amount.

Provisions of Law Cited

Abkari Act, Section 8(2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel argued that the prosecution failed to explain the unexplained delay in producing the contraband and the samples from 27.01.1998 to 17.02.1998, and no forwarding note was produced to establish proper chain of custody, rendering the evidence unreliable. The lack of documented safe custody and the absence of credible link evidence between the seized contraband and laboratory analysis undermine the prosecution’s case; thus, benefit of doubt should be extended to the accused. The defense stressed that the tamper-proof despatch of samples to the Chemical Examiner could not be established, which is essential to prove the offence under the Abkari Act.

Contentions of Respondents

The State contended that not every delay invalidates the prosecution case and that the evidence of contraband and the samples was presented; however, it acknowledged the importance of chain of custody and tamper-proof handling. The prosecution relied on established principles requiring link evidence and proper sampling procedures, but the judgment notes the absence of forwarding notes and failure to demonstrate custody, arguing that these gaps weaken the chain of evidence and justify grave doubt regarding the prosecution’s ability to prove possession for sale.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sasidharan v. State of Kerala	2007 (1) KLT 720	Positive	Cited for the principle that link evidence of actual sampling and tamper-proof despatch to the Chemical Examiner is necessary to prove the offence.
Ravi v. State of Kerala	2011 (3) KLT 353	Positive	Cited to emphasize the requirement that contraband must reach the laboratory in tamper-proof condition, establishing a credible chain of custody.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **CRL.A.No.702 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 323/2000 DATED 29-02-2008 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA** ## **APPELLANT/S/ACCUSED:** **REJIKUMAR @ REJI S/O VASUDEDEVAN NAIR, PRAYATT VEEDU, THYMARAVUM MURIYIL,, KUTTOOR VILLAGE.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.M.SUNILKUMAR** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.702 OF 2008** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 8 (2) of the Abkari Act. 2. The is that on prosecution allegation 27.01.1998 at about 6.30 p.m., the appellant was found in possession of 3 litres of illicit arrack for the purpose of sale in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned Counsel for the appellant has argued that since there was long and unexplained delay in producing the contraband and the samples before the court, the appellant is entitled to benefit of **CRL.A.No.702 OF 2008** **3** doubt. The learned Counsel for the appellant has further argued that since no forwarding note was produced and marked in this case, the appellant is entitled to benefit of doubt on that reason also. 5. The incident in this case was on 27.01.1998. Ext.P5 is the property list, which would show that the contraband and the samples were produced before the court on 17.02.1998. PW5 produced the contraband and the samples before the court. PW5 stated that the contraband and the samples were received in the court only on 17.02.1998. PW5 did not state any reason for the delayed production of the contraband and the samples before the court. It appears that the observation of the court below, that PW5 did not state **CRL.A.No.702 OF 2008** **4** that he produced the samples before the court, is not factually correct. PW5 clearly stated in his examination-in-chief itself that he produced the contraband and the samples before the court. There is no convincing evidence with regard to the safe custody of the samples till their production before the court. PW5 did not state that the contraband and the samples were kept in his safe custody till their production before the court. No other witness was also examined to prove the safe custody of the contraband and the samples till their production before the court. 6. The delay as such is not always fatal to the prosecution case. However, if there is unexplained delay, the same is, no doubt, fatal to **CRL.A.No.702 OF 2008** **5** the prosecution case. In this case, since there was unexplained delay from 27.01.1998 to17.02.1998 in producing the contraband and the samples before the court, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the appellant, particularly when there is no evidence with regard to the safe custody of the samples till their production before the court. Consequently, the appellant is entitled to benefit of doubt. 7. It is also to be noted that no forwarding note was produced and marked in this case. 8. In Sasidharan v. State of Kerala [2007 (1) KLT **CRL.A.No.702 OF 2008** **6** 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 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.” 9. 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 tamper-proof condition. **CRL.A.No.702 OF 2008** **7** 10. It appears that no forwarding note was produced or marked in this case. Therefore, it has to be held that the prosecution could not establish the tamper-proof despatch of the samples to the laboratory. Consequently, there is no satisfactory link evidence to show that the same samples which were drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical examiner by change of hands in a tamper-proof condition. For the said reason also, the appellant is entitled to benefit of doubt. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The **CRL.A.No.702 OF 2008** **8** bail bond of the appellant stands discharged. Needless to state that if the appellant had already deposited any amount before the 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** RK/16.10.2020