Sahadevan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 11TH DAY OF AUGUST 2014/20TH SRAVANA, 1936** ## **CRL.A.No. 1203 of 2005** **---------------------------** **AGAINST THE JUDGMENT IN SC 970/2001 of THE ADDITIONAL DISTRICT AND SSSIONS COURT(FAST TRACK)(ADHOC) NO.II, THIRUVANANTHAPURAM.** **APPELLANT/ACCUSED:** **SAHADEVAN, S/O.GANGADHARAN, ANEEZH BHAVAN, CHANTHAYILKADU, CHERUVALLAM KALLARA VILLAGE.** **BY ADVS.SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1203 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)-II, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA 1203/2005 2 3. The prosecution case is briefly stated as follows: PW4, the Sub Inspector of Police, Pangodu Police Station, and his party were on patrol at Cheruvalam in Kallara Village, at about 10.30 a.m.on 4-9-1999. While so, PW4 received reliable information that the appellant was selling arrack at a place on the southern side of Cheruvalam Junction. Therefore, PW4 and his party reached that place when the appellant was seen standing there carrying a 1½ litre plastic bottle in his right hand and a glass in his left hand. Seeing the police party, the appellant attempted to flee away. But, the police party stopped him there. On examining the plastic bottle carried by the appellant, about one litre of arrack was found in it. Therefore, he was arrested then and there preparing Ext.P3 Arrest Memo and Ext.P3(a)Inspection Memo. PW4 sealed the plastic bottle containing arrack and that bottle and glass were seized under Ext.P1 Seizure Mahazar in the presence of witnesses. On searching the body of the appellant, two 100 Rupee CRA 1203/2005 3 Notes, five 10 Rupee Notes and a 5 Rupee Note were found in the pocket of his shirt. Those Currency Notes worth Rs.255/- were also seized by PW4. Thereafter, PW4 reached Pangodu Police Station and, on the basis of Ext.P1, registered Crime No. 121 of 1999 of that Police Station. Ext.P1(a) is the F.I.R. thus drawn by PW4. He had produced the appellant along with the Remand Report before the court. He had also produced the properties along with Ext.P2 List of Property. The Forwarding Note for subjecting the sample of contraband to chemical analysis was also produced. Ext.P4 is the Certificate of Chemical Analysis received from the Chemical Examiner's Laboratory. PW4 had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court-I, Attingal. CRA 1203/2005 4 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruananthapuram, and, from there, it was made over to the Additional Sessions Court(Adhoc)-II, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offences under Section 55 (a) and (h) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 series to P6 and MO.1 to MO.3 series on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(h) of the Abkari Act and hence he was acquitted of that offence. He was heard on the question of sentence and imposed the CRA 1203/2005 5 sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that PW4 and his party found the appellant possessing about one litre of arrack in a 1.5 litre plastic bottle at about 10.30 a.m. on 4-9-1999 and PW4 seized that contraband then and there. But, he had produced the properties including the contraband before the court along with Ext.P2 List of Property only on 9-9-1999 as evident from Ext.P2. PW4, while he was in the witness box, did not offer any explanation for such delay occurred in producing the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala [2011(3)KLT 353]** laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector[2013(3)KHC 308]** found, for the reasons stated in that judgment, that an unexplained delay of a CRA 1203/2005 6 single day is fatal to the prosecution case. In the case on hand, there is no explanation at all for the delay occurred in producing the properties including the contraband before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution in this case and on that ground alone the appellant is entitled to an order of acquittal. 6. Where the contraband was kept after it was seized by PW4 on 4-9-1999 till it was produced before the court on 9-9-1999? No evidence had been adduced by the prosecution either through PW4 or through PW3, a Police Constable who accompanied PW4, examined by them. Moreover, there is no evidence as to under whose custody the contraband was kept during the said period. In **Narayani v. Excise Inspector (2002 (3)KLT 725),** a learned single Judge of this Court observed as follows: “.......In the absence of any evidence to prove that residue and sample were kept CRA 1203/2005 7 in the proper custody till the date of producing the same before Court on 13.9.98(no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out.......” Therefore, the accused was found to be entitled to benefit of doubt in that case. In the case on hand also, such a benefit is to be extended to the appellant. 7. The prosecution does not have a case that PW4 had drawn sample of the contraband at the place of occurrence. Ext.P1 Seizure Mahazar does not show that sample was drawn from the bulk of arrack contained in the plastic bottle. PW4 did not depose also that a sample was drawn from the bulk of arrack. It is noted in Ext.P1 that the contraband was sealed by PW4. PWs.3 and 4 deposed also that the plastic CRA 1203/2005 8 bottle containing arrack was sealed at the place of occurrence. But, in Ext.P2 List of Property, the plastic bottle containing arrack was not described as sealed. Since no sample was drawn by PW4 from the bulk at the place of occurrence for the purpose of subjecting them to chemical analysis, the sample must have been taken in the court for that purpose. Who had taken the sample? The property clerk or other official dealing with the Material Objects in the court was not examined in this case. Therefore, there is no evidence as to the facts whether the contraband was kept safely or who had drawn the sample from the bulk and whether the sample was drawn from the contraband allegedly seized in this case. 8. PW4 deposed that he had submitted Forwarding Note before the court for the purpose of subjecting the sample of the contraband to chemical analysis. Even though a copy of the Forwarding Note was available among the records, the prosecution did not choose to mark that CRA 1203/2005 9 document during trial. The copy of the Forwarding Note available among the records shows that a space is specifically provided in it for affixing the sample seal. But, no such sample seal is seen affixed on the copy of the Forwarding Note. In this case, even if the sample was drawn and sealed in the court, the seal thus affixed on the sample must be the seal of the court. Therefore, the sample impression of that seal should have found a place in the copy of the Forwarding Note. But, no such sample impression is seen affixed on the copy of the Forwarding Note. 9. It is reported in Ext.P4 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. It is also noted in the document that the seal on the bottle was intact and found tallied with the sample seal provided. Since no evidence is available as to the seal affixed on the sample and in view of the fact that the property clerk or other official in charge of the Material Objects in the court CRA 1203/2005 10 was not examined, no finding that the sample examined by the Chemical Examiner at the Chemical Examiner's Laboratory was the sample of the contraband claimed to have been seized by PW4 at the place of occurrence can be entered in this case. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 10. This Court in **Rajamma v. State of Kerala (2014 (1) KLT 506)** has held as follows : “.......... 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 PW.1 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 CRA 1203/2005 11 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 who is a lady.” This Court in **Ravi v. State of Kerala (supra)** has held that the prosecution can succeed only if it is shown that the contraband liquor which is allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, for these reasons, Ext.P4 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. CRA 1203/2005 12 11. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 12. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. ## **Sd/-** **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S.(Hr.Gr.) To Judge CRA 1203/2005 13 **BABU MATHEW P. JOSEPH JUDGE** ks.