Sasidharan Nair S/o Kesava Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938** ## **CRL.A.No. 1356 of 2004 ( )** **---------------------------** **AGAINST THE JUDGMENT IN SC 570/2001 of ADDL.SESSIONS COURT (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA DATED 16-07-2004** **-----------------------------** **APPELLANT/ACCUSED:** **---------------------------------** **SASIDHARAN NAIR S/O. KESAVA PILLAI, PUTHUPARAMBIL VEEDU, KOCHALUMMOOD, VALLICODU, VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY AMICUS CURIAE SRI.PRAJEESH N.P.** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.M.V.ANANDAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl.A. No.1356 of 2004** ------------------------------------------------- Dated this the 13[th] day of January, 2017 ## **JUDGMENT** The court below convicted the appellant under Section 8(2) of the Abkari Act and sentenced him thereunder to simple imprisonment for one year and a fine of Rs.1,00,000/- and in default to simple imprisonment for one more year. 2. Since there is no representation for the appellant, this Court appointed Adv.Prajeesh N.P. as Amicus curiae to argue the case of the appellant. 2. Heard the learned Amicus curiae and the learned Public Prosecutor. 3. The prosecution allegation is that on 27.08.1998 at about 7.40 p.m., the appellant was found in possession of 3 litres of arrack in contravention of the provisions of the Abkari Act. 4. Before the trial Court, PW1 to PW4 were **Crl.A. No.1356 of 2004** **2** examined and Exts.P1 to P8 series were marked for the prosecution besides identifying MO1. DW1 was examined on the side of the appellant. 5. The learned Amicus curiae has argued that there is no evidence regarding the drawing of the sample from the contraband and in the said circumstances, the appellant is entitled to benefit of doubt. PW1 was the Detecting Officer who produced the contraband before the court as per Ext.P5. PW1 stated that he had given requisition to the court for taking the sample from the contraband. PW4 was the Investigating Officer in this case. PW4 stated that the sample was taken by PW1. However, PW4 could not state about the date on which the sample was taken by PW1. The evidence of PW1 would clearly show that he did not take the sample from the contraband. Ext.P5 would show that a can having 5 litre capacity containing 3 litres of arrack was produced before the court as per Ext.P5. As per Ext.P6, certificate of chemical analysis, one bottle containing 180 ml. of the **Crl.A. No.1356 of 2004** **3** sample was received in the laboratory. Therefore, sample was drawn from the contraband. However, there is no evidence regarding the person who had taken the sample from the contraband. There is also no evidence with regard to the place at which the sample was drawn from the contraband. No forwarding note was also produced or marked before the court. No forwarding note is also available with the records transmitted to this Court. 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], this Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper-proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 7. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311], the Court held thus: **Crl.A. No.1356 of 2004** **4** “Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized andit reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had **Crl.A. No.1356 of 2004 5** succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” In Ravi v. State of Kerala [2011 (3) KLT 353], a Division Bench of this Court held that the prosecution in a case under the Abkari Act could 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 by change of hands in a tamper-proof condition. In this case, the forwarding note was neither prepared nor produced before the Court. Therefore, there is no satisfactory link evidence to show that it was the same sample drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper proof manner. There is also no evidence regarding the drawing of the sample from the contraband. In the said circumstances, the appellant is entitled to benefit of doubt. 8. It has been further argued by the learned Amicus **Crl.A. No.1356 of 2004** **6** curiae that even though the incident in this case was on 27.08.98, PW4 filed final report before the court only on 11.12.2000. No explanation has been given by the prosecution as to why there was delay in filing the final report before the court. The evidence of PW4 would show that he had taken over the investigation only on 07.12.99. 9. In Krishnan H. v. State [2015 (1) KHC 822], this Court held that inordinate delay in conducting investigation in the absence of sufficient explanation is fatal to the prosecution. In this case, there was unexplained delay of more than two year and three months in conducting the investigation and filing the final report, and hence the same is no doubt, fatal to the prosecution as held in Krishnan H. (supra). The above vital aspects were not considered by the court below while appreciating the evidence. For the said reason, the conviction and sentence passed by the court below cannot be set aside and consequently, I set aside the same. In the result, this Appeal stands allowed, setting **Crl.A. No.1356 of 2004** **7** aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellant is acquitted for the said offence. The bail bond of the appellant stands cancelled and the appellant is set at liberty. Sd/- **B. SUDHEENDRAKUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//