Sebastian v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 ``` ## **`CRL.A NO. 1670 OF 2008`** ``` AGAINST THE JUDGMENT IN SC 667/2003 OF ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY CP 254/2002 OF JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS ,KUTHUPARAMBA ``` ## **`APPELLANT:`** ``` SEBASTIAN PUNNERI HOUSE, KOLAYAD AMSOM,, PUTHALAM. BY ADV SRI.C.P.PEETHAMBARAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY SMT S REKHA,SR GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1670 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 04.07.2008, passed by the Additional Sessions Court [Adhoc-III], Thalassery in Sessions Case No.667 of 2003, the accused has preferred this appeal. The appellant was convicted under Section 8(2)of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 17.05.2002 at 17.30 hrs, the accused was found in possession of 170 litres of illicit arrack at Puthalam 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 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 1670 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) 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 4 and proved Exts.P1 to P6 and MO1, MO2 series and MO3. 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. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 1670 OF 2008 ``` ..4.. 6. Heard Sri.C.P. Peethambaran, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- - (1) The prosecution failed to establish the identity of the person who was allegedly carrying the contraband substance. - (2) The prosecution failed to establish that the contraband seized from the scene of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 17.05.2002. The seizure was effected by the Sub Inspector of Police, Peravoor. According to the prosecution, on seeing the Police party, the person who was carrying the contraband ``` CRL.A NO. 1670 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** substance ran away from there. He could not be apprehended. The prosecution has no case that the Detecting Officer and other official witnesses had any previous acquaintance with the accused. Going by the evidence of the Detecting Officer and other official witnesses, they had only fleeting glimpse of the person who ran away from the scene of occurrence. They identified the accused in the box in the year 2008 after a long lapse of six years. They had no opportunity to see the accused after the incident. No test identification parade was conducted. 9. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare ``` CRL.A NO. 1670 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** testimony regarding the identification of an accused for the first time in Court [vide: **Kanan and others v. State of Kerala** [AIR 1979 SC 1127], **Jameel v. State of Maharashtra** [AIR 2007 SC 971]. **Raja v. State by Inspector of Police** [AIR 2020 (SC) 254], **State (Delhi Administration) v. V.C. Shukla and another** [AIR 1980 (SC) 1382], **Mohd. Abdul Hafeez v. State of AP** [AIR 1983 (SC) 367]. So on this ground alone the prosecution must fail. 10. The learned counsel for the appellant challenges the genuineness of the sample produced before the Court on the ground that there is inordinate delay in the production of the properties including the sample before the Court below. Though the seizure was effected on 17.05.2002, Ext.P3 property list would show that the properties including the sample were produced before the Court only on 10.06.2002. There is no explanation for the delay in the production of the ``` CRL.A NO. 1670 OF 2008 ``` ..7.. properties including the sample before the Court. 11. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of 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. 12. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would ``` CRL.A NO. 1670 OF 2008 ``` ..8.. lead to the conclusion that tampering with samples could not be ruled out. 13. In the instant case, as the prosecution has not established that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P5 Certificate Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 14. 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 8(2) of the Abkari Act. In the result, - (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed ``` CRL.A NO. 1670 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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