Sadanandan s/o Appakunhi v. State of Kerala (Bekal Police Station, Cr. No. 46/2004)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** **CRL.A.No.2238 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 439/2005 DATED 27-09-2006 OF ADDITIONAL SESSIONS COURT (ADHOC-1), KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN CP 15/2005 DATED 23-06-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, HOSDURG** ## **APPELLANT/ACCUSED:** **SADANANDAN S/O.APPAKUNHI, AGED 64 YEARS, THOTTIYIL HOUSE, KALANAD VILLAGE.** **BY ADV. SRI.M.SANTHOSHKUMAR** ## **RESPONDENT/COMPLAINANT:** **SHO. BEKAL POLICE STATION CR. NO.46/2004, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SYLAJA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2238 OF 2006** **2** ## **JUDGMENT** **Dated this the 9th day of March 2021** **The 1[st] accused in S.C.No.439/2005 on the file of the Additional Sessions Court (Adhoc) 1, Kasaragod has filed this appeal being aggrieved by the judgment dated 27.09.2006, whereby he has been found guilty of offence under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of 1,00,000/- and in default of payment of₹ fine, to undergo rigorous imprisonment for a further period of 6 months.** **2. The case of the prosecution is that the appellant along with one Pramod, who was the 2[nd] accused, were found in possession of 2755 packets of Karnataka made arrack near their residential compound in Kalanadu Village. According to the prosecution, the Additional Sub Inspector of Police, Bekal Police Station, who led the Police** **CRL.A.No.2238 OF 2006** **3** **party, had on receiving information that the accused were handling arrack imported from the State of Karnataka at their residence, inspected the premises and found two persons piling up plastic bags and concealing them by covering with palm leaves. The 2[nd] accused ran away and the 1[st] accused alone could be apprehended. It is stated that there were 6 bags and all of them contained packets filled with 100 ml of arrack. The appellant was arrested. One packet is stated to have been taken for the purpose of sampling from each of the bags and they were opened and poured into two bottles. It is stated that the bottles were sealed and labelled as samples and the detecting officer PW1, the accused and 2 independent witnesses, who were present there have signed on the labels. It is further stated that after reaching the Police Station crime was registered and the properties were produced before the committal court as per the property list Ext.P3** **CRL.A.No.2238 OF 2006** **4** **and PW1 filed a forwarding note before the committal court for sending the samples for chemical analysis. Before the trial court, PW1 to PW7 were examined on the side of the prosecution and Exts.P1 to P11 were marked. Since the articles seized had been disposed of, no material objects were identified before the Court.** **3. On the basis of the evidence on record, the court below found the appellant guilty of the offence charged against him and imposed the sentence referred above.** **4. Heard.** **5. Even though several contentions have been raised in the appeal memorandum, on going through the records of the case, I find that there are certain infirmities in the evidence tendered on behalf of the prosecution. The incident has allegedly occurred on 10.04.2004 and hence the procedure under Section 53A of the Abkari Act, has** **CRL.A.No.2238 OF 2006** **5** **to be followed for the purpose of disposal of the contraband articles seized. It is seen from the evidence before the court that Ext.P3 property list was produced before the court on 11.04.2004. It can be seen from Ext.P3 that, only the sample taken has been included in the property list. Ext.P4 is the forwarding note prepared by the Sub Inspector of Police, Bekal Police Station. The document shows that it is prepared on 12.04.2004. Even though it has been counter signed by the Magistrate, no date has been written below the initial of the Magistrate and hence it is not known as to when exactly the samples were forwarded to the chemical examiner. There is an endorsement showing a date 03.05.2004 with reference to letter No.168/2004, in Ext.P4. Ext.P5, which is the** **certificate issued by the chemical examiner on 16.09.2004 shows that the sample had been sent along with the reference letter dated 03.05.2004 and that it had been received on 04.05.2004 in the** **CRL.A.No.2238 OF 2006** **6** **office of the chemical examiner. There is no explanation regarding the delay of 23 days in forwarding the sample to the chemical examiner. It is also not known as to how the sample was kept in safe custody in the office of the forwarding officer. So also, Ext.P11 property list shows the inventory of properties which has been certified by the Magistrate under the provisions of Section 53A of the Abkari Act. It is seen from Ext.P11 that a photograph of the material object had been taken in the presence of the Magistrate only on 02.05.2005. There is also a certificate issued by the Magistrate on 02.05.2005 stating that he has verified the articles in the premises of the Police Station on 02.05.2005 and photographs of articles were taken in his presence and that the inventory prepared is found to be correct. Even though the above said documents are dated 02.05.2005 I find that the inventory itself is said to have been taken on 06.05.2004 and a seal of the Judicial** **CRL.A.No.2238 OF 2006** **7** **First Class Magistrate is affixed on which there is an initial with the date 11.05.2004. It appears that the inventory itself was prepared after the photographs were taken and the certificate was issued by the Magistrate. Such a procedure can never be termed as in accordance with the procedure contemplated under Section 53A, which is mandatory in nature. Apart from this, admittedly the sample that was sent for chemical examination was not the sample which was drawn in accordance with Section 53A at the time when the Magistrate had verified the seized articles and issued the certificate. This Court has held that without the material object which has been seized, there can be no prosecution against the appellant, particularly since the inventory which has certified by the Magistrate is to be treated as primary evidence of the offence under Section 53A(5). It has been categorically held by this Court in several judgments that if the procedure contemplated in** **CRL.A.No.2238 OF 2006** **8** **Section 53A is not strictly and scrupulously followed, even the seizure of the liquor becomes doubtful. (See** _**Balakrishna Rai v. State of Kerala [2020(3) KHC 286]**_ **,** _**Damodaran v. Station House Officer and another [2007(4) KHC 936]**_ **,** _**Appu v. State of Kerala [2016(5) KHC 310]**_ **.** **6. In the light of the law laid down by this Court, I find that the prosecution has not complied with the procedure contemplated under Section 53A for the disposal of arrack that was said to have been seized and this creates a doubt regarding the seizure itself. Even if it is to be assumed that proper procedure has been followed for disposing of the contraband articles and that the sample which was taken at the time of detection of the offence alone need be sent for chemical analysis, the delay that has occurred in forwarding the samples is also fatal to the case of the prosecution. (See** _**Ravi V. State of Kerala [2018 (5) KHC 352] & Balachandran V. State of Kerala [2020 (3) KHC 697])**_ **.** **CRL.A.No.2238 OF 2006** **9** **Hence, the judgment dated 27.09.2006 of the Additional Sessions Judge (Adhoc) 1, Kasaragod in S.C.No.439/2005 is set aside. The appellant is acquitted and set at liberty. Bail bonds, if any, issued by the appellant or on his behalf are cancelled. The appeal stands allowed.** **Sd/-** **T.R.RAVI, JUDGE** **Pn**