Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **CRL.A.No.876 OF 2006(A)** **AGAINST THE ORDER/JUDGMENT IN SC 329/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CP 37/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS , RAMANKARI** ## **APPELLANT/S/ACCUSED:** **SASIDHARAN AGED 49 YEARS S/O PRABHAKARAN,, SIBEESH BHAVAN, KUTTAMANGALAM MURY,, KAINAKARY VILLAGE, KUTTANAD TALUK.** **BY ADVS. SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.DELVIN JACOB MATHEWS SRI.GEORGE PHILIP SRI.RAJU RADHAKRISHNAN** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA,SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.876 OF 2006(A)** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 55 (g) of the Abkari Act. 2. The is that on prosecution allegation 16.05.1998 at about 2.00 p.m., the appellant was found in possession of 66 litres of wash for the purpose of manufacturing arrack, in contravention of the provisions of the Abkari Act. 3. PW1 was the Excise Range Inspector, who detected the offence. He arrested the appellant and seized the contraband. He had also taken the samples from the contraband. **3** ## **CRL.A.No.876 OF 2006(A)** 4. PW6 conducted the initial investigation. Thereafter, the investigation was taken over by PW5, who, after completing the investigation, laid the charge before the court. 5. In the trial, PW1 to PW6 were examined and Exts. P1 to P8 were marked, besides identifying MO1 and MO2. DW1 was examined on the side of the defence. 6. Heard. 7. The learned Counsel for the appellant has argued that since there was unexplained delay from 16.05.1998 to 20.05.1998 in producing the samples before the court, the appellant is entitled to benefit of doubt. It has been further argued by the **4** **CRL.A.No.876 OF 2006(A)** learned Counsel for the appellant that since no seal was affixed on the forwarding note by the Excise officials, the tamper-proof despatch of the samples to the laboratory could not be established by the prosecution and consequently, the appellant is entitled to benefit of doubt on that ground also. 8. The incident in this case was on 16.05.1998. Ext.P6 is the property list, which would show that the contraband and the samples were produced before the court only on 20.05.1998. PW1 produced the contraband and the samples before the court. PW5 also admitted that the contraband and the samples were received in the court on 20.05.1998. No explanation was given by PW1 as to why there was **5** ## **CRL.A.No.876 OF 2006(A)** delay in producing the contraband and the samples before the court. There is also no evidence with regard to the safe custody of the samples till their production before the court. It is settled law that even if the delay is for one day, that has to be explained by the prosecution. If it is not explained, the same is fatal to the prosecution case. 9. In this case, since there was unexplained delay from 16.05.1998 to 20.05.1998 in producing the samples and the contraband before the court, the chance for tampering with the samples could not be ruled out, particularly when there was no evidence with regard to the safe custody of the samples till their production before the court. In the said **6** ## **CRL.A.No.876 OF 2006(A)** circumstances, there cannot be any guarantee that the samples produced before the court and analysed in the Laboratory were the samples drawn from the contraband seized from the appellant and consequently, the appellant is entitled to benefit of doubt. 10. Ext.P7 is the copy of the forwarding note, which does not contain the seal of the Excise Inspector, who forwarded the sample to the court. The seal of the court alone is found in Ext.P7. 11. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311], the Court held thus: “Further in the absence of specimen seal impression of the seal used for sealing the **7** ## **CRL.A.No.876 OF 2006(A)** 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 and it 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 **8** ## **CRL.A.No.876 OF 2006(A)** proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” 12. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the 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.” 13. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the ## **CRL.A.No.876 OF 2006(A)** **9** 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. 14. In Krishnan.H v. State [2015 (1) KHC 822], the court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. 15. In this case, Ext.P7 does not contain the sample seal at the space provided for the same. No evidence was adduced by the prosecution to show that **10** ## **CRL.A.No.876 OF 2006(A)** the sample seal was provided on the original forwarding note. In view of the above, the prosecution could not establish the tamper- proof despatch of the samples to the laboratory and consequently, there cannot be any conviction on the basis of Ext.P8 certificate of chemical analysis. For the said reason also, the appellant is entitled to benefit of doubt. 16. The above aspects were not considered by the court below while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the court below cannot be sustained. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 55(g) of the Abkari Act and **11** **CRL.A.No.876 OF 2006(A)** the appellant stands acquitted for the said offence. The bail bond of the appellant stands discharged. **SD/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/17.09.2020