Sanukumar s/o Kanaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 CRL.A NO. 1991 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 1156/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ``` ## **`APPELLANT`** ``` SANUKUMAR S/O KANARAN VADAKKEPARAMBATHU HOUSE, THURAUOOR AMSOM DESOM, KOILANDI TALUK. ``` ``` BY ADVS. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL ``` ## **`RESPONDENT:`** ``` STATE OF KERALA PREVENTIVE OFFICER, EXCISE RANGE VAKARA THROUGH, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY SR GOVERNMENT PLEADER SMT REKHA ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl A No. 1991 of 2008 ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 08.08.2008, passed by the Additional District and Sessions Court, Vadakara in Sessions Case No.1156/2006, the accused 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 one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 16.06.2004 at 2.10 pm, the accused was found in possession of 10 bottles of Indian Made Foreign Liquor in front of the Block Office, Vatakara. He was transporting the same in a bus bearing Reg. No.Kl-11/B-4023 from Mahi to Kerala 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 Crl A No. 1991 of 2008 **==> picture [20 x 9] intentionally omitted <==** the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 8 and proved Exts. P1 to P9. 5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. Exts. D1 and D2 were examined on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him Crl A No. 1991 of 2008 **==> picture [20 x 9] intentionally omitted <==** thereunder. 6. Heard Sri.Pulikkool Abubacker, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor. 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 seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- - (i) Though the accused was produced before the Court on 16.06.2004, the date of detection itself, along with the crime and occurrence report, the properties including the sample were produced only on 17.06.2004. - (ii) The prosecution failed to establish the chain of custody of the contraband during its transit Crl A No. 1991 of 2008 **==> picture [20 x 9] intentionally omitted <==** from the Court to the laboratory.. 9. The alleged seizure was effected by PW1, a Preventive Officer of Excise Range, Vatakara on 16.06.2004 at 2.10 pm. The accused was arrested from the scene of occurrence. PW1 had drawn sample from the bulk quantity of the contraband seized from the possession of the accused. He prepared Ext.P2 seizure mahazar at the scene of occurrence. PW1 gave evidence that on 16.06.2004 itself, the accused was produced before the Court. But properties including the sample were produced before the Court only on 17.06.2004. The prosecution has not offered any satisfactory explanation for the delay in the production of the sample, before the Court. The delay in the production of the sample, even if it is for a day would be fatal to the prosecution if no satisfactory explanation is offered. The unexplained delay in the production of the sample before the Court would lead to the conclusion that the prosecution failed to rule Crl A No. 1991 of 2008 ..6.. out the possibility of the sample being changed or tampered with. This view is fortified by the decision of this Court in **Ravi v. State of Kerala** [2011 (3) KHC 121]. In **Ravi v. State of Kerala,** this Court held thus:- “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. 10. There is no satisfactory explanation for the delay in the production of the sample before the court. The Crl A No. 1991 of 2008 **==> picture [20 x 9] intentionally omitted <==** unexplained delay in the production of the sample would lead to the conclusion that tampering with sample could not be ruled out. 11. Ext.P8, the property list would show that the sample was received by the Junior Superintendent of the Court. Ext.P7, Certificate of Chemical Analysis would show that Sri. C.P.Chandran, an Excise Guard delivered the sample in the laboratory. The Junior Superintendent of the Court and Sri. C.P. Chandran were not examined by the prosecution. Ext.P7 would show that on 29.06.2004, the sample was forwarded to the laboratory. There is no evidence as to the custody of the sample during the interregnum from 17.06.2004 to 29.06.2004. PW7, the Property Clerk stated that he received the sample on 17.06.2004. He has not given evidence as to the custody of the sample till the same was forwarded to the laboratory. The chain of custody of the sample could be established only by examining the Junior Superintendent of the Court who had received the same and Cri.C.P. Crl A No. 1991 of 2008 **==> picture [20 x 9] intentionally omitted <==** Chandran, the Excise Guard, who delivered the sample in the laboratory. Non-examination of those officials is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 12. In the absence of any convincing evidence to the effect that the liquor allegedly seized from the place of occurrence was eventually subjected to chemical analysis, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband allegedly seized from the place of occurrence. 13. 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. Crl A No. 1991 of 2008 **==> picture [20 x 9] intentionally omitted <==** In the result, - (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