Santosh s/o Kunjambu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **CRL.A.No.879 OF 2006(A)** **AGAINST THE ORDER/JUDGMENT IN SC 720/2002 DATED 09-03-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 235/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** ## **APPELLANT/ACCUSED:** **SANTHOSH S/O.KUNJAMBU, ANOOR PADINJATTATHIL, KANNIMEL CHERRI,, SAKTHIKULANGARA VILLAGE.** **BY ADVS. SRI.K.SIJU SMT.S.SEETHA** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SMT MAYA M N, PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.879 OF 2006(A) 2** ## **JUDGMENT** ## **Dated this the 10th day of March 2021** This is an appeal filed u/s 374(2) of the Criminal Procedure Code (Cr.P.C) against the judgment of conviction and sentence passed by the Additional Sessions Judge (Adhoc) II, Kollam in SC No.720/2002 dated 9[th] March 2006. 2. The accused/appellant faced trial for an offence committed u/s 55(a) of the Abkari Act. The prosecution case in short is that the accused was found in possession of 13 pouches of arrack (100 ml in each pouch) for sale on 31/10/2000 at 4.30 p.m on the road on the southern side of Annor Padinjattathil, Kannimel Cherri. PW4 along with PW2 while on patrol duty got reliable information that the accused was possessing and selling arrack in plastic pouches in the road on the western side of his house. Accordingly they reached the spot and accused was intercepted and 13 pouches of arrack containing 100 ml in each pouch were seized. The accused was arrested and on conducting body search, Rs.180/- was recovered. The contents in two pouches were collected as sample in a bottle. That was sealed and packed in the presence of witnesses who were examined as PWs 1 and 3. Thereafter, PW4 registered FIR against the accused for an offence **CRL.A.No.879 OF 2006(A) 3** punishable under Section 55(a) of the Abkari Act. Ext.P2 is the FIR. The accused and seized articles were produced before the Magistrate Court. The sample was sent for chemical analysis and after chemical analysis, the chemical analyst's report was received which was marked as Ext.P4. After completing the investigation, the investigating officer, PW5, filed final report before the Magistrate. The learned Magistrate committed the case for trial to the Court of Sessions. 3. The accused appeared before the court below. After hearing both sides, the court below framed charge against the accused under Section 8(1) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. 4. The prosecution examined PW1 to PW6. Exts.P1 to P4 and MO1 were marked. On completing the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances that were brought against him during evidence. No defence evidence was adduced. After trial, the court below found that the accused has committed offence punishable under Section 8(1) of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default, to suffer rigorous imprisonment for six months as per the impugned judgment. The said judgment is under challenge in this ## **CRL.A.No.879 OF 2006(A) 4** appeal. 5. Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor. 6. The learned counsel for the appellant assailed the finding of the guilt passed against the appellant as illegal and unsustainable contending that the detection as well as investigation were done by Assistant Sub Inspector of Police who is not a competent authority. The counsel further submitted that there is undue delay in producing the seized contraband articles before the Court, the benefit of which should, definitely, go to the accused. The counsel also submitted that the arrest memo as well as forwarding note for sending the samples for chemical analysis were not produced or marked in evidence. There is no acceptable legal evidence to prove the guilt of the accused other than the interested testimony of official witnesses, argued the counsel. 7. The first and foremost argument advanced by the learned counsel for the appellant is the lack of competence of the detecting officer to detect the crime as well as of the Investigating Officer to investigate the offence. I find some force in the said submission. PW4 is the detecting officer. He is the Assistant Sub Inspector of Police at Sakthikulangara Police Station. In evidence, he deposed that since Sub Inspector was on leave, he was in charge. PW5 is the Investigating Officer. He is also the Assistant Sub Inspector of Police in **CRL.A.No.879 OF 2006(A) 5** Sakthikulangara Police Station. He also deposed that he was in charge of Sub Inspector. Inviting my attention to SRO No.321 of 1996, the learned counsel contended that only police officers of and above in the rank of Sub Inspector of Police in charge of law and order and working as the General Executive Branch of the Police Department apart from the Revenue Officers mentioned in the notification are competent to conduct the detection and investigation of the Abkari offences. The decision of this court, in **Unni V. State of Kerala** [2009 (2) KHC 661], **Baiju and Others V. State of Kerala** [2011 (1) KHC 518] and **Rajan V. State of Kerala** [2009 KHC 829] were relied by the counsel to substantiate his contention that PW4, Assistant Sub Inspector of Police, had no authority to detect or seize the contraband and PW5, Assistant Sub Inspector of Police, had no authority to conduct investigation of the case. In **Unni V. State of Kerala** [Supra], it was held that the Assistant Sub Inspector of Police, as per the notification issued by the Government, is not authorized or empowered to detect or investigate the Abkari offences. In **Baiju and Others V. State of Kerala** [Supra], it was held that the Assistant Sub Inspector of Police though given the grade of Sub Inspector is not an Abkari officer under the Act and is not authorized or empowered to detect or investigate the Abkari offences. In **Rajan V. State of Kerala** [Supra] also, it was held that the Assistant Sub Inspector of Police being not ## **CRL.A.No.879 OF 2006(A) 6** an Abkari officer authorized under the Abkari Act, is incompetent to detect, investigate or lay charge in relation to Abkari offences. Even though it is stated by PW4 and PW5 in the evidence that they were in charge of Sub Inspector of police, no documentary evidence was produced to show that they were in charge of Sub Inspector of police only. Either in Exts.P1 or P2 or in the final report, nothing has been stated that PW4 and PW5 were in charge of Sub Inspector as he was on leave. So, I do accept the submission of learned counsel for the appellant that PW4 and PW5 were not authorized officers competent to detect and investigate the offence under the Abkari Act and as such, the detection and investigation done by them was unauthorized. 8. The next point urged by the learned counsel for the appellant is regarding the delay in producing the seized articles before the Court. The evidence on record would show that there is delay of 16 days in producing seized articles before the Court. It is true that mere delay is not fatal, until and unless the accused is able to show that on account of the delay, there was possibility for manipulation of documents and records. The definite case of the appellant is that on account of delay, there was possibility for tampering the seized articles. It is equally settled that the delay has to be properly explained by the prosecution. This Court in **Ramankutty V. Excise Inspector, Chelannur Range** [2013 (3) KHC 308] has held that in ## **CRL.A.No.879 OF 2006(A) 7** the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution case. In **Anilkumar V. State of Kerala & Anr.** [2020 (3) KLJ 512], this Court held that inordinate and unexplained delay in producing the samples of the contraband substance before the Court creates suspicion that the samples have been tampered with and that possibility of tampering or meddling with the samples cannot be ruled out in such case. The Supreme Court in **State of Uttarpradesh vs Hansraj alias Hansu** [(2018) 18 SCC 355] has held that when there is delay in producing samples of the contraband substance in the court and when the evidence is that they were kept in the police station, the prosecution has to adduce evidence to show as to how and in what condition the samples were preserved at the Police Station. In this case, absolutely no explanation has been offered by the prosecution showing the cause of the delay. No satisfactory explanation was also forthcoming from the prosecution as to the custodian of the contraband during the delayed period of 16 days. There is no evidence adduced by the prosecution to show as to how and in what conditions the samples were kept at the Police Station during the period of 16 days till they were produced in the Court. The next point urged by the learned counsel for the appellant is regarding the non production of the forwarding note. The learned counsel argued that ## **CRL.A.No.879 OF 2006(A) 8** mere production of laboratory report that the sample tested was contraband substance is not sufficient unless and until forwarding note is also produced. In support of the said argument, the learned counsel cited the decision of this Court in **Girish alias Manoj V. State of Kerala** [2019 KHC 655]. It was held that in the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of occurrence had reached chemical examiner for analysis in a tamper proof condition. In **Ramachandran V. State of Kerala** [2020 ICO 4306], this court held that forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused, which eventually reached the hands of chemical examiner by change of hands in a tamper proof condition and hence non production of it amounts to doubt in prosecution case. In this case, no forwarding note has been produced. Ext.P1 mahazer does not contain specimen sample. Specimen has also not been separately produced. Hence, I am of the view that non production of the forwarding note also is fatal to the prosecution. 9. The aforesaid vital aspects which cut the root of the prosecution case were not taken into consideration by the Court below while appreciating the prosecution evidence. In these circumstances, **CRL.A.No.879 OF 2006(A) 9** I hold that the conviction and sentence passed by court below cannot be sustained. In the result, the criminal appeal stands allowed. The conviction and sentence passed by the court below is set aside. Appellant is found not guilty of the aforesaid offence and he is acquitted. His bail bond is cancelled. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** rps