Sabu Joseph @ AppAPPY S/O Joseph and P.P. Peter @ James v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943 CRL.A NO. 1975 OF 2006** **AGAINST THE ORDER DATED 09.10.2006 IN SC 266/2003 OF** **ADDITIONAL SESSIONS JUDGE (ADHOC-III), KASARAGODE APPELLANTS/ACCUSED:** **1 SABU JOSEPH@APPAPPY S/O.JOSEPH, AGED 32 YEARS, NIRUVATHU HOUSE, KOORANKUNDU, PARAPPA VILLAGE. 2 P.P.PETER @ JAMES, S/O.PHILIP AGED 34 YEARS PALAKKAMATTATHIL HOUSE, CHULLY, MALOM VILLAGE.** **BY ADV SRI.M.SANTHOSHKUMAR** ## **RESPONDENT/RESPONDENT:** **SHO, VELLARIKKUNDU POLICE STATION IN CR.NO.167/2000, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1975 of 2006 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.1975 of 2006** **------------------------------------** Dated this the 15[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 09.10.2006, passed by the learned Additional Sessions Judge, (Adhoc-III), Kasaragod, in SC.No.266/2003, the two accused have preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act. 3. The prosecution case is that on 16.09.2000 at about 10.30 p.m., the accused were found in possession of 68 packets, each containing 100 ml of arrack made in the Karnataka State for the purpose of sale at BeemanadiVellarikundu Panchayath, Kooramkkunnu, Kasaragod District. The accused No.1 was found in possession of 40 packets of arrack and the other accused was found in possession of 28 packets of arrack. The accused were Crl.A.No.1975 of 2006 3 apprehended by the Sub Inspector of Police, Vellarikundu Police Station. The contraband articles were seized by the detecting officer, who registered Crime No.167/2000 of Vellarikundu Police Station, against the accused alleging offence punishable under Section 55(a) of the Abkari Act. 4. Final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-II, Hosdrug. 5. The case was committed to the Sessions Court, Kasaragod from where it was made over to the Additional Sessions Court-III, Kasaragod. On appearance of the accused charge was framed against them for the offence punishable under Section 55(a) of the Abkari Act. Both the accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 7 and Exts.P1 to P10 and MOs 1 Crl.A.No.1975 of 2006 4 to 12. 7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. They 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 they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused are guilty of offence under Section 55(a) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo simple imprisonment for a term of four years each and to pay a fine of Rs.1,00,000/- each under Section 55(a) of the Abkari Act. 8. Heard Sri. M. Santhosh Kumar, the learned counsel appearing for the appellants/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. Crl.A.No.1975 of 2006 5 9. The learned counsel for the appellants/accused raised the following grounds: - (a) The prosecution has not satisfactorily explained the delay in production of the properties, allegedly seized, before the court. - (b) The prosecution failed to establish that the articles said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory in a tamper proof condition. - (c) There is no satisfactory explanation for the delay caused in the analysis of the sample at the Chemical Examiner's laboratory. - (d) The prosecution has not offered any satisfactory explanation for the delay in completion of the investigation. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. Crl.A.No.1975 of 2006 6 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 Sub Inspector of Police, Vellarikundu Police Station, detected the offence. He has given evidence that on getting reliable information, that the accused were engaged in sale of arrack at Kooramkkunnu, the Police party led by him proceeded to the court and found the accused carrying 2 plastic bags on the side of a public booth. PW3, inspected the plastic bags found in the possession of the accused and ascertained that the bags contained small packets of arrack made in the State of Karnataka. Accused No.1 was found in possession of 40 such packets and the other accused was found in possession of 28 packets. PW3 has given evidence that the accused were arrested from the spot and the articles found in their possession were seized as per Ext.P1 seizure mahazar. PW1, a Police Constable who had Crl.A.No.1975 of 2006 7 accompanied PW3 in the search and seizure has given evidence in support of the version given by PW3. 13. PW4, an independent witness, examined to prove the incident proper, did not support the prosecution case. PW2, the local Village Officer, was examined to prove the scene of occurrence. PW5, the Assistant Sub Inspector of Police, Vellarikundu Police Station, conducted investigation. PW6, the Inspector of Police of Vellarikundu Police Station, conducted part of the investigation. PW7, the then Sub Inspector of Police, Vellarikundu Police Station, completed investigation and submitted final report before the Court on 16.08.2001. 14. The prosecution failed to give satisfactory explanation for the delay in production of the articles allegedly seized from the scene of occurrence. The alleged seizure was on 16.09.2000. Ext.P8, the property list, shows that the articles allegedly seized from the place of occurrence were produced before the Court only on 18.09.2000. PW3, the detecting officer, has not given Crl.A.No.1975 of 2006 8 any satisfactory explanation for the delay in production of the properties before the Court. He has not even given evidence as to the custody of the articles referred to in Ext.P8 during the period from 16.09.2002 to 18.09.2000. 15. On the question of delay in 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 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) 16. 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 Crl.A.No.1975 of 2006 9 lead to the conclusion that tampering with the samples could not be ruled out. 17. The learned counsel for the appellants/accused further contended that the prosecution failed to establish that the sample allegedly drawn from the bulk quantity of the arrack said to have been seized from the place of occurrence, eventually reached the Chemical Examiner's laboratory. 18. The learned counsel for the appellants relied on the following circumstances to substantiate his contentions: - (a) Ext.P1, seizure mahazar, is silent as to the collection of sample from the arrack allegedly recovered from the place of occurrence. (b) Ext.P1, seizure mahazar, is silent regarding the nature and description of the seal said to have been used. - (c) The detecting officer, PW3, and the other official witnesses, have not given evidence as Crl.A.No.1975 of 2006 **==> picture [13 x 9] intentionally omitted <==** to the nature and description of the seal affixed on the bottle containing the sample. - (d) The specimen impression of the seal has not been produced before the court. - (e) The copy of the forwarding note, Ext.P9, does not contain the date on which the sample was handed over to the Police Official concerned for delivering the same to the Chemical Examiner's Laboratory. 19. Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure and other related formalities, does not specifically state that sample was taken from the bulk quantity of arrack said to have been recovered from the possession of the accused. Ext.P1, seizure mahazar, is also silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 20. The detecting officer, PW3, and the other official witnesses, have not given evidence as to the Crl.A.No.1975 of 2006 11 nature and description of the seal affixed on the bottle containing the sample. 21. 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. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) **, Krishnadas v. State of Kerala** (2019 KHC 191)]. 22. This Court failed to find the specimen impression of the seal stated to have been used to seal the bottles containing the sample in Ext.P9, copy of the forwarding note. The specimen impression of the seal has not been produced before the court. 23. There is absolutely no evidence as to the nature Crl.A.No.1975 of 2006 12 and description of the seal stated to have been used by the detecting officer and that the specimen of the seal has been provided to the Chemical Examiner to ensure that the seal affixed on the bottles containing the sample was tallied with the one provided. 24. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. 25. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Crl.A.No.1975 of 2006 13 Examiner, no evidentiary value can be given to Ext.P10 chemical analysis report. 26. This Court is in the dark as to the date on which the bottles containing the sample were handed over to the Police Official concerned to be delivered to the Chemical Examiner's laboratory. There is also no evidence in Ext.P9 or in any of the contemporaneous documents that the Police Constable concerned received the sample bottles from the Court. It is also pertinent to note that the learned Magistrate has not written the date on which he made his initial in Ext.P9, copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the Thondi Clerk of the court or the Police official concerned to establish the tamper proof despatch of the sample to the laboratory. (vide: **Kumaran v. State of Kerala** [2016 (4) KLT 718]). 27. Ext.P10, certificate of chemical analysis, shows that the sample bottles reached the laboratory on 30.10.2000. But the same was subjected to analysis only Crl.A.No.1975 of 2006 14 on 05.01.2001. The learned counsel for the appellant contended that the delay in analysis of the sample which has not been explained properly 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 long delay in the analysis of the sample remains unexplained. 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 Crl.A.No.1975 of 2006 15 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: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303] **, 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 are entitled to benefit of doubt arising from the absence of link evidence as discussed above. 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 Crl.A.No.1975 of 2006 **==> picture [13 x 9] intentionally omitted <==** sustained. The appellants/accused are therefore not guilty of the offence punishable under Section 55(a) of the Abkari Act. They are acquitted of the charge levelled against them. They are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS