Sarojini v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **CRL.A NO. 1614 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 437/2001 OF SPECIAL COURT FOR** **ABKARI ACT CASES, KOTTARAKKARA, KOLLAM** ## **APPELLANT/ACCUSED:** SAROJINI, D/O.GOURI DEEPA BHAVAN,ERICHICKKAL, ASHTAMANGALAM WARD, PUNALUR VILLAGE. BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, PUNALUR, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI. M.S.BREEZ (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1614 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.1614 of 2006** --------------------------------------Dated this the 13[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 12-07-2006, passed by the learned Additional Sessions Judge (Abkari), Kottarakkara in S.C No.437/2001, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Sections 55(a) and 55(i) of the Abkari Act. 3. The prosecution case is that on 30-04-1999 at 4.00 p.m., the accused was found in possession of 8 ½ litres of arrack blended toddy for sale in a jerry can having a capacity of 10 litres at Ashtamangalam near Punalur. 4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the Judicial Magistrate of First Class-III Punalur. The case was committed to the Crl.A No.1614 of 2006 3 Sessions Court, Kollam from where it was made over to the Additional Sessions Court (Abkari), Kottarakkara. On appearance of the accused charges were framed against her for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges levelled against her and therefore, she came to be tried by the trail court for the aforesaid offences. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P5 and MOs 1 and 2. 6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence she was called upon to enter on her defence and to adduce evidence, if any, she may have in support thereof. The trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences under Sections 55(a) and 55(i) of the Abkari Act and she was convicted thereunder. The accused was Crl.A No.1614 of 2006 4 sentenced to undergo rigorous imprisonment for a term of one year each and to pay a fine of Rs.1 Lakh each under Sections 55(a) and 55(i) of the Abkari Act. 7. Heard Sri.K.T.Thomas, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended as follows: - (i) The delay in the production of the properties before the court has not been satisfactorily explained. - (ii) The prosecution failed to establish that the articles said to have been seized from the place of - occurrence eventually reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor submitted that the prosecution could well establish the charges against the accused. 10. The only point that arises for consideration is whether the 5 Crl.A No.1614 of 2006 conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW4, the Sub Inspector of Police, Punaloor detected the offence. He has given evidence that on 30-04-1999 while he was on patrol duty the accused was found carrying MO1 can having a capacity of 10 litres at Erichikkal junction near Punalur. According to PW4, on seeing the police team the accused ran away from the scene of occurrence abandoning the can possessed by her. PW4 seized MO1 can as per Ext.P1 seizure mahazar from the scene of occurrence. He also recovered MO2 glass tumbler left there. PW4 has given evidence that they identified the accused at a distance of 100 meters. 12. PW1, a police constable, who had accompanied PW4, supported the version of the prosecution. 13. PWs 4 and 1 have given evidence that sample was collected in three bottles each containing 375 ml from the bulk quantity of arrack at a scene of occurrence. PW2, a woman police constable 6 Crl.A No.1614 of 2006 attached to DYSP office, Punalur would say that as per the instruction of PW4 she arrested the accused on 01-05-1999 at 10.00 a.m from Maniyar junction. 14. PW3, the independent witness examined to prove the incident proper, did not support the prosecution case. 15. The learned counsel for the appellant/accused submitted that the delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. PW4 admitted that the articles seized from the place occurrence were produced before the court only on 05-05-1999. Exhibit P3 list of properties sent to the Magistrate would also show that the properties were received by the court on 05-05-1999. The explanation of PW4 is that on 01-05-1999 he had brought the articles before the court, but as it was a holiday the properties could not be produced. There is no evidence to show that on any day prior to 05-05-1999 PW4 brought the articles to the court. The available evidence shows that the properties were produced before the court on 05-05-1999. The explanation given by PW4 for the delay in the production of the Crl.A No.1614 of 2006 7 ## properties is not satisfactory. 16. 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.” (Emphasis supplied)_ The Division Bench held that the production of the properties should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no explanation for the delayed production of the property. Unexplained delay in the production of the properties including the bottles containing the sample would lead to the conclusion that tampering with the samples could not be ruled out. 17. The learned counsel for the accused further contended that the prosecution has not succeeded in establishing that the contraband substance recovered from the place of occurrence Crl.A No.1614 of 2006 8 ## eventually reached the Chemical Examiner’s laboratory. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: - (i) PW4, the detecting officer and the other official witness who was present at the time of seizure, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (ii) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (iii) The copy of the forwarding note, which contains the specimen impression of the seal, has not been produced before the court. 18. I have gone through the oral evidence of the official witnesses and Ext.P1 seizure mahazar. PW4, the detecting officer and PW1, the police constable who had accompanied PW4, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar is silent regarding the Crl.A No.1614 of 2006 9 specimen impression of the seal stated to have been affixed on the bottle containing the sample. 19. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar so as to enable the court to satisfy the genuineness of the sample produced in the court {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Krishnadas v. State of Kerala**_ [2019 KHC 191]}. 20. In the instant case, the prosecution has not satisfied the above mentioned requirements. 21. The learned counsel for the accused further contended that there is nothing to show that the specimen seal was provided to the Chemical Examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the bottle containing the sample. The copy of the forwarding note has n0t been produced and marked in this case. In _**Ramachandran v. State of Kerala**_ Crl.A No.1614 of 2006 10 ## [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked this Court held thus: _“9. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper – proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper – proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”_ There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. In _**Rajamma v. State of Kerala**_ (2014(1) KLT 506), this Court held thus: _“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant.”_ ## 22. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner no evidentiary value Crl.A No.1614 of 2006 11 ## can be attached to Ext.P5 chemical analysis report. 23. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 24. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from contraband substance allegedly recovered from the place of occurrence. {Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 25. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 26. The upshot of the above discussion is that, the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not Crl.A No.1614 of 2006 12 guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. She is acquitted of the charges. She is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS