Robert Thekkukallazhikam Veedu v. State of Kerala and Sub Inspector of Police, Paravur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **CRL.A.No.1035 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 1488/2002 DATED 21-05-2005 OF DISTRICT COURT & SESSIONS COURT,KOLLAM** ## **APPELLANT/S/ACCUSED:** **ROBERT THEKKUKALLAZHIKAM VEEDU, KALLADAKKODUCHERRY, POOTHAKKULAM VILLAGE.** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENT/S/COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** - **2 THE SUB INSPECTOR OF POLICE PARAVUR.** **R1-2 BY PUBLIC PROSECUTOR SMT.SREEJA.V, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1035 OF 2005** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 55 (a) and (i) of the Abkari Act. 2. The is that on prosecution allegation 25.08.1999 at about 4.00 p.m., the appellant was found in possession of 4 litres of arrack, in contravention of the provisions of the Abkari Act. 3. It has been argued that since there was unexplained delay in producing the samples and the contraband before the court, the appellant is entitled to benefit of doubt. It has been further argued that since no forwarding note was produced and marked in **CRL.A.No.1035 OF 2005** **3** this case, the tamper-proof despatch of the samples to the laboratory could not be established and in the said circumstances also, the appellant is entitled to benefit of doubt. 4. Ext.P4 is the property list, which would show that the contraband and the samples were received by the court on 06.09.1999. PW4 was the Sub-Inspector of Police. He stated that he produced the contraband and the samples before the court on the date of seizure itself. However, since there was no space in the court, he was directed to keep the contraband and the samples in his safe custody. Thereafter, he produced the samples and the contraband before the court on 06.09.1999. 5. It appears that the above evidence of PW4 **CRL.A.No.1035 OF 2005** **4** cannot be accepted for more than one reason. Firstly, if PW4 had produced the contraband and the samples before the court on 25.08.1999, there would have been an endorsement in this regard from the court. However, no such endorsement has been produced before the court to indicate that the contraband and the samples were produced before the court on the date of seizure itself. Secondly, it appears from Ext.P4 that the said property list was signed by PW4 only on 06.09.1999. It is common knowledge that no material object can be produced before the court without a property/thondy list. If that be so, it is not discernible as to how PW4 could produce the contraband and the samples before the court on the date of seizure, as Ext.P4 property list was not in existence on that day. **CRL.A.No.1035 OF 2005** **5** 6. The very fact that Ext.P4 was prepared and signed only on 06.09.1999 itself, would indicate that the evidence of PW4 that he had initially produced the contraband and the samples before the court on the date of seizure, cannot be correct. Therefore, it has to be held that there was no explanation for the delayed production of the contraband and the samples before the court. There is also no convincing evidence with regard to the safe custody of the contraband and the samples till their production before the court. 7. The delay as such is not always fatal to the prosecution case. However, unexplained delay is, no doubt, fatal to the prosecution case. Since there was unexplained delay from 25.08.1999 to 06.09.1999 in **CRL.A.No.1035 OF 2005** **6** producing the contraband and the samples before the court, the same is, no doubt, fatal to the prosecution case, particularly when there is no convincing evidence with regard to the safe custody of the contraband and the samples till their production before the court. Consequently, the appellant is entitled to benefit of doubt. 8. It appears that no forwarding 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 **CRL.A.No.1035 OF 2005** **7** 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 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 **CRL.A.No.1035 OF 2005** **8** 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 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 **CRL.A.No.1035 OF 2005** **9** which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper-proof condition. 12. In this case, the forwarding note was neither produced nor marked before the court. Therefore, there is no satisfactory link evidence to show that it was the same samples, which were 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.P5 certificate of chemical analysis cannot be sustained. In the result, this Criminal Appeal stands allowed, **CRL.A.No.1035 OF 2005** **10** setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/23.09.2020