Sarojini Amma d/o Kunjulakshmi Amma v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937 CRL.A.No. 1389 of 2006 (A) -------------------------------AGAINST THE JUDGMENT IN SC 523/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-I, TRIVANDRUM DATED 28-06-2006 CP 95/2003 of J.M.F.C.-I,ATTINGAL ------ APPELLANT/ACCUSED: ------------------------- SAROJINI AMMA D/O.KUNJULAKSHMI AMMA, VADAKKUMKARA VEEDU PALOTTUKONAM, BHARATHANNOOR, ANAKUDI MURI PANGODE VILLAGE. BY ADV. SRI.J.JAYAKUMAR RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF, PROSECUTION HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.ABHIJIT P. LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.1389 of 2006 -----------------------------------------------Dated this the 22[nd] day of January, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. She was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for six months. Challenging the conviction and sentence so 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. 3. The prosecution case is briefly stated as follows: PW4, the Sub Inspector of Police, Pangode Police Station, received reliable information at 3.30 p.m. on 21-06-2002 that the appellant was selling arrack at Palottukonam. Crl. Appeal No.1389 of 2006 -2- Therefore, after securing the presence of PW1, a Woman Police Constable, PW4 and his party reached Palottukonam at 5.15 p.m. While so, the appellant and a man were seen standing there. The appellant was seen pouring some liquid from the plastic bottle carried in her right hand to the glass tumbler carried in her left hand. Seeing that, the police party reached them when the man who was standing there ran away. The appellant was stopped there with the help of PW1. On examining the one litre plastic bottle carried by the appellant, 600 ml. of arrack was found in it. She was arrested then and there by PW1. The plastic bottle containing arrack and the glass tumbler were sealed and seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party reached Pangode Police Station with the appellant, properties and the records and registered Crime No.77 of 2002 of that Police Station in respect of the occurrence. Ext.P2 is the F.I.R. thus drawn by PW4. PW4 produced the appellant before the Judicial First Class Magistrate's Court-I, Attingal, Crl. Appeal No.1389 of 2006 -3- along with the Remand Report. He has also produced the properties before the court along with a Forwarding Note and a request for drawing sample from the bulk of arrack contained in the bottle. He has conducted the investigation of the case. He has questioned the witnesses and recorded their statements. Ext.P3 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. PW4 completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram and, from there, it was made over to the Assistant Sessions Court, Attingal, and subsequently, it was made over to the Additional Sessions Court (Ad hoc)-I, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P3 and M.Os.1 and 2 on their side. Crl. Appeal No.1389 of 2006 -4- Exts.D1 to D3 were marked on the side of defence through PW1. The appellant was examined under Section 313 of Cr.P.C. She denied all the incriminating circumstances shown against her. The defence has not adduced any evidence except marking Exts.D1 to D3 as aforesaid. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted her thereunder. She was heard on the question of sentence and imposed the sentence on her. 5. The appellant has raised various contentions challenging the conviction and sentence passed against her. It is the prosecution case that the appellant was found in possession of arrack for the purpose of sale on 21-06-2002 and she was arrested then and there and seized M.O.1 plastic bottle containing arrack under Ext.P1 Seizure Mahazar by PW4. The properties were produced before the court along with a List of Property. But, that List of Property was not sought to be marked by the prosecution in this case. PW4 deposed that the properties were produced before the Crl. Appeal No.1389 of 2006 -5- court on 22-06-2002. But, it was received by the court only on 25-06-2002. He also stated that till the properties were so produced on 22-06-2002, they were kept in the storeroom at the Police Station. To a question as to under whose custody the properties were kept till 25-06-2002, PW4 replied that they were under his custody. Initially, he stated that he had produced the properties on 22-06-2002. Later, he claimed that they were under his safe custody till 25-06-2002. Both these statements cannot go together. The List of Property produced before the court is available among the records. It can be seen from this document that the properties were produced before the court only on 25-06-2002. The office of the court has made a submission before the learned Magistrate on that day itself for passing an order to keep the properties in the Police Station itself. On 25-06-2002 itself, that submission was allowed by the learned Magistrate. If, as a matter of fact, the properties were produced before the court on 22-06-2002 as claimed by PW4, such an endorsement would have been made from the court on the Crl. Appeal No.1389 of 2006 -6- List of Property on that day itself. But, the specific entries made from the court show, in unequivocal terms, that the properties were produced before the court only on 25-06-2002. What was the reason for such delayed production of the properties before the court? No explanation was offered by the prosecution. PW4 also did not offer any explanation for such delayed production of the properties before the court. 6. 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 reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, the prosecution has not offered any explanation for the delay that occurred in producing the properties before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties Crl. Appeal No.1389 of 2006 -7- before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 7. It is the case of the prosecution that PW4 submitted a report before the court requesting for taking sample from the contraband for the purpose of subjecting the same to chemical examination. PW4 also submitted a Forwarding Note for that purpose. It is stated in Ext.P1 Seizure Mahazar that the contraband seized was sealed by PW4. He deposed also before the court that it was so sealed. But, in the List of Property with which the properties were produced before the court, M.O.1 plastic bottle containing arrack was not described as sealed. It is reported in Ext.P3 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample and the sample of liquid contained 36.47% by volume of ethyl alcohol. Whether the Chemical Examiner examined really the sample collected from the arrack allegedly seized from the appellant? Who has taken the sample from the bulk at the court? The clerk who was Crl. Appeal No.1389 of 2006 -8- dealing with the properties in the court was not examined in this case. He is a competent witness for proving the fact that the sample taken was really from the bulk of arrack seized from the appellant. Since he was not examined the prosecution failed to prove the fact that the sample taken and sent for Chemical analysis was really the sample taken from the bulk seized from the appellant. 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. 8. A Division Bench of 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 was 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 Crl. Appeal No.1389 of 2006 -9- allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P3 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. For the foregoing reasons, the impugned conviction and sentence passed by the court below are liable to be set aside. The appellant is entitled to be acquitted of the offence under Section 55(a) of the Abkari Act. 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 55(a) of the Abkari Act. She is set at liberty. The bail bond executed by the appellant shall stand cancelled. This appeal is allowed. Sd/- **JUDGE** **BABU MATHEW P. JOSEPH** kns/- //TRUE COPY// P.A. TO JUDGE