## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,**
**1944**
**CRL.A NO. 1151 OF 2008**
**AGAINST THE ORDER/JUDGMENT AND CONVICTION DATED 15.05.2008 PASSED BY THE LEARNED ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA, IN SC 71/2006**
**APPELLANT/ACCUSED NO.2:**
**SANDEEP S/O.KUNJUMON, PUTHOTTU VEEDU, KOLERI P.O., CHIRATTAYAMBAM, PUTHODI VILLAGE, SULTHAN BATHERL TALUK, WAYANAD DISTRICT.**
**BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J.**
## **RESPONDENT/COMPLAINANT AND STATE:**
**STATE OF KERALA PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.**
## **REKHA- GOVERNMENT PLEADER**
**THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
Crl.Appl.No.1151 of 2008 2
## **K.BABU, J.**
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## Crl.A No. 1151 of 2008
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Dated this the 22[nd] day of November, 2022
## **JUDGMENT**
Aggrieved by the judgment dated 15.05.2008, passed by the Additional Sessions Court (Adhoc-II), Kalpetta, in Sessions Case No.71/2006, accused No.2 has preferred this appeal. The appellant/accused No.2 was convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 24.05.2004 at 04.00 am., the appellant/accused No.2 and the other accused were found transporting 1354 litres of spirit in a mini lorry bearing Registration No. KRM-1617 at Purakkadi near Sultan Bathery in violation of the provisions of the Abkari Act.
3. According to the prosecution accused No.1 was driving the vehicle, and the appellant/accused No. 2 was sitting nearby him. Accused No.3 is the registered owner of the vehicle
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involved. The offence was detected by the Circle Inspector, Excise Range, Sultan Bathery (PW1).
4. Accused No.1 did not face trial as he remained
absconding. Accused No.3 was acquitted and accused No.2 was convicted.
5. 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 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.
6. The prosecution examined PWs 1 to 6 and proved
Exts.P1 to P8.
7. After the closure of the evidence on behalf of the
prosecution, statements 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
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defence and adduce evidence, if any, they may have in support thereof. On the side of defence DWs 1 & 2 were examined and Exts.D1 to D3 were marked. The Trial Court, after hearing the arguments addressed on both sides, found accused No. 2 guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder.
8. Heard Sri. Devaprasanth P.J, the learned counsel appearing for the appellant/accused No.2 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.
9. The judgment of conviction and sentence is challenged on the following grounds:-
(1) The delay in the production of properties, including the sample, before the Court has not
been satisfactorily explained by the prosecution.
(2) The prosecution failed to establish the genuineness of the properties, including the sample produced before the Court.
(3) The prosecution failed to rule out the possibility of the sample being changed or tampered with.
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10. The alleged seizure was effected on 24.05.2004. The detecting Officer had drawn sample from the scene of occurrence in two bottles. He had produced the properties, including the sample, before the Court only on 26.05.2004. There is no satisfactory explanation for the delay in the production of properties, including the sample before the Court.
11. In **Ravi v. State of Kerala** [2011 (3) KHC 121], on the question of delay in the production of properties, a Division Bench of this Court held as follows:
“8. We, therefore, answer the reference as follows:
1. 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.
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12. 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.
13. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing the genuineness of the sample produced before the Court. The learned counsel submitted that the specimen of the seal stated to have been affixed on the bottles containing the sample as noted in Ext.P3 mahazar is not legible. The learned counsel has taken me to Ext.P3 mahazar and Ext.P7 forwarding note to contend that the impression of the seal incorporated in Ext.P3 differs from the impression or the specimen seal incorporated in Ext.P7. I have gone through Exts.P3 and P7. The specimen seal provided in both these documents are not found to be the same.
14. This discrepancy itself casts doubt on the genuineness of the sample produced before the Analyst for examination. The learned counsel further contended that though the bottles containing samples were forwarded to the laboratory from the Court on 26.5.2004, the same reached the laboratory only on 22.06.2004. There is no explanation for the custody of the bottles
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containing the sample during the interregnum from 26.05.2004 to 22.06.2004. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8, Certificate of Chemical Analysis, shows that the sample was forwarded to the laboratory as per the letter dated 26.05.2004 of JFMC -I, Sultan Bathery. In the absence of any contra evidence, the necessary inference is that the bottles containing the sample were received by the Excise guard concerned from the Court on 26.05.2004 itself. However, Ext.P8 shows that the bottles containing the sample reached the laboratory only on 22.06.2004. The property clerk, who was the custodian of the sample and the Excise Guard by the name Sri. P. Aboobacker, who delivered the sample in the laboratory were not examined by the prosecution.
15. While dealing with a similar fact situation this Court in
## **Viswanathan v. State of Kerala** [2016 (3) KHC 38] held thus:
“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition
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and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”
16. In the present case, in the absence of any explanation regarding the custody of the properties including the sample during the period from 26.05.2004 to 22.06.2004, this Court has to conclude that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. If the prosecution had examined the officials who handled the sample during its transit from the Court to the laboratory, it could have ruled out the possibility of the sample being changed or tampered with. Nonexamination of the officials concerned 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, since the prosecution has not succeeded in showing that the contraband substance seized at the scene of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value.
18. Resultantly, the prosecution was unable to establish the link connecting the accused with the contraband seized and the
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sample analysed in the laboratory. Therefore, the accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above.
19. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, accused No. 2 is acquitted of the offence alleged. He is set at liberty.
The appeal is allowed as above.
Sd/-
**K.BABU JUDGE**
AP
