Sanal Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, ``` ## **`1944`** ## **`CRL.A NO. 1000 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT IN SC 44/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA ``` ## **`APPELLANT/S:`** ``` SANAL KUMAR S/O.SREEDHARAN, PONNALAYAM VEEDU (MADHUTHARA), WARD NO.8 AMBALAPPUZHA VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.C.S.MANU SRI.ANOOP JOSEPH SRI.ABHILASH AKBAR SRI.S.K.PREMRAJ SRI.T.B.SIVAPRASAD ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REP.BY ITS PUBLIC PROSEC REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. SR.P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1000 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 31.03.2008, passed by the Additional Sessions Court, [Fast Track -II], Alappuzha in Sessions Case No.44 of 2006, the accused No.1 has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 24.06.2002 at 6.00 pm, the accused were found in possession of 20 litres of arrack in the store room of the house bearing No.790-A in ward No.8 of Ambalapuzha Panchayath in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 1000 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial Court. On the appearance of the accused charge was framed against them for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P14 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. Accused No.2 was found not guilty and he was acquitted. ``` CRL.A NO. 1000 OF 2008 ``` ..4.. 6. Heard Sri.C.S.Manu, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (a) The inordinate delay in the production of the properties including the sample has not been explained by the prosecution. - (b)Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. ``` CRL.A NO. 1000 OF 2008 ``` ..5.. - (c)Forwarding note/requisition for sending sample has not been produced and marked . - (d)The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner’s laboratory. 9. The alleged seizure was effected on 24.06.2002 by the Inspector of Police, Amabalapuzha. According to the prosecution, the contraband substance was seized from the possession of the accused at the scene of occurrence. The contraband substance was seized as per Ext.P1 seizure mahazar. PW6 prepared Ext.P13 list of properties on 25.06.2002 and the properties including the sample were produced before the Court only on 29.06.2022. No satisfactory explanation was offered by the Detecting Officer for the delay in the production of the properties including the sample. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: ``` CRL.A NO. 1000 OF 2008 ``` ..6.. “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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.” In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. Ext.P1 is the seizure mahazar prepared by PW6. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing ``` CRL.A NO. 1000 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** the sample. PW6 has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court at the time of production of properties including the sample. There is no evidence to show that the specimen of the seal was forwarded to the laboratory for verification. The forwarding note/ requisition for sending sample was not produced and marked. 13. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 14. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal ``` CRL.A NO. 1000 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 15. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized. 16. Ext.P14 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 28.08.2003 of the JFMC, Ambalapuzha. The sample was delivered in the laboratory on 29.08.2003 by a Police constable No.3833. The sample remained in the custody of the Property Clerk of the Court and the Police Constable who delivered the same in the laboratory. Those officials were not examined by the prosecution to ``` CRL.A NO. 1000 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 17. In the instant case, as the prosecution failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P13 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance seized. 18. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 55(a) of the Abkari Act. In the result, ``` CRL.A NO. 1000 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; - (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj