Shibu @ Chakku v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **CRL.A.No.1773 OF 2007** **SC 225/2004 DATED 24-08-2007 OF ADDITIONAL SESSIONS COURT (ADHOC)III, THIRUVANANTHAPURAM** ## **APPELLANT/S:** **SHIBU @ CHAKKU, S/O. VASUDEVAN, MANUVILA MELETHATTU PUTHEN VEEDU, AVANANKUZHY, ATHIYANNUR, NEYYATTINKARA.** **BY ADVS. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU** ## **RESPONDENT/S:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** **OTHER PRESENT:** **SR.PP.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1773 of 2007 -2- ## **JUDGMENT** Dated this the 27[th] day of February, 2020 **The appellant stands convicted by the Additional Sessions Court, Fast Track -III, Thiruvananthapuram for the offence punishable under Section 55(a) of the Abkari Act.** **2. The prosecution allegations which led to the conviction of the appellant are as follows:-** **On 12.08.2001 at about 6 p.m., while on patrol duty, the Sub Inspector of Police, Neyyattinkara(PW3) chanced upon the appellant near Athiyanoor-Avanakuzhi area. The accused was travelling on a scooter at high speed with some object concealed under his dhothi. The accused was involved in abkari offences earlier and therefore, suspecting foul play, the Police party asked him to stop the vehicle. But, instead of** Crl.A.No.1773 of 2007 -3- **stopping the vehicle, the accused tried to flee from the scene with his scooter and when the police party chased him, abandoned the scooter and fled from the scene. On inspection of the scooter and the other belonging left by the accused, the Police party found a Can containing 35 litres of liquid. On examination, the liquid was identified to be rectified spirit. Thereupon, the contraband, the scooter,the dhothi and the mobile phone left by the accused were seized and taken to the Police Station and Crime No.398 of 2001 registered. The material objects were forwarded to the jurisdictional Magistrate Court on 16.08.2001. On receiving information that the accused was arrested and remanded in connection with another crime, a production warrant along with a remand application was submitted before the Magistrate** Crl.A.No.1773 of 2007 -4- **Court and the accused arrested in the instant case. The sample of the contraband being forwarded for chemical analysis, Ext.P6 report was received finding that the sample contained 95.06% by volume of ethyl alcohol.** **3. In order to prove the prosecution case, PW1 to PW4 were examined and Exts.P1 to P6 documents marked. MO1 to MO5 are the material objects produced in court and identified by the prosecution witnesses. The accused denied the incriminating circumstances put to him during 313 questioning and pleaded that he was not guilty of the offence and the case was foisted upon him by the Police.** **4. The trial court, on appreciation of evidence and on consideration of the contentions, found that the prosecution had succeeded in proving the accused guilty of the offence alleged** Crl.A.No.1773 of 2007 -5- **and thereupon convicted the accused for the offence under Section 55(a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/-, with default sentence of six months.** **5. Heard Sri.Vinod V.A, learned Counsel for the appellant and Sri.B.Jayasurya, learned Senior Government Pleader.** **6. The learned Counsel for the appellant assails the impugned judgment mainly on the ground that there was absolutely no evidence regarding the forwarding of the sample for chemical analysis. It is submitted that the forwarding note having not been produced and marked in evidence, the trial court could not have convicted the accused, since the chain of events, starting from confiscation of the** Crl.A.No.1773 of 2007 -6- **contraband till the sample reached the hands of the chemical examiner, was incomplete.** **7. In the nature of the contention raised, the oral testimony of PW3; the investigating officer, was scrutinised. Even though the investigating officer vouched that the material objects were produced before the court under Form 151 A on 16.08.2001 and the sample was sent under forwarding note, the forwarding note was not produced before court and marked in evidence. Exts.P3 and P3(a) would show that 35 litres of spirit seized along with the can, was sealed and produced before the court. There is absolutely no evidence regarding drawing of sample from the contraband, either before or even after producing it in the court. The said fact, coupled with the failure to produce the forwarding note and the sample seal cuts at the root of the prosecution** Crl.A.No.1773 of 2007 -7- **case.** **8. This Court has consistently held that proof of mere seizure of liquid will not suffice for the purpose of conviction under Section 55 (a) of the Abkari Act. The trial court has to come to the definite conclusion, based on the material evidence, that the sample analysed was the very same sample drawn from the contraband seized. It is the duty of the prosecution to prove all the links starting from seizure of sample till it reaches the chemical examiner (See** _**Vengadan Narayanan @ Achooty v. State of Kerala [2019(3) KLJ 862] and Sukumaran v. State of Kerala [ILR 2019(4) Ker. 70]**_ **). It has also been held that absence of forwarding note would be fatal to the prosecution in cases involving offences under the Abkari Act (See** _**Gireesh v. State of Kerala [2019 (4) KLT 79]**_ **).** Crl.A.No.1773 of 2007 -8- **9. Yet another aspect which was not duly considered by the trial court is the delay in production of the contraband/sample before court. The alleged seizure of the contraband is on 12.08.2001 and its production in the court was only on 16.08.2001. Even the trial court noticed that no explanation was submitted by PW3 for the delay in producing the contraband before the court. With the above fatal defects, it is impossible to sustain the impugned judgment.** **In the result, the criminal appeal is allowed by setting aside the impugned judgment. The appellant is acquitted and consequently, the bail bond executed by him will stand cancelled.** Sd/- **V.G.ARUN JUDGE** Scl/27.02.2020 Crl.A.No.1773 of 2007 -9-