Sivaprasad v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 1830 OF 2008`** ``` AGAINST THE ORDER/JUDGMENTSC 1253/2002 OF JUDICIAL ``` ``` MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA APPELLANT/S: ``` ``` SIVAPRASAD THENNOOR MELATHIL VEEDU, MUTTARA MURI,, ODANAVATTOM VILLAGE, KOTTARAKKARA. BY ADVS. SRI.K.V.ANIL KUMAR SRI.P.V.DILEEP ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT REKHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1830 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 29.07.2008, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara, in Sessions Case No.1253/2002, the accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 27.12.2000 at 2 p.m., the accused was found in possession of 6 litres of arrack at Odanavattam in violation of the provisions of the Abkari Act. 3. After completing the 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 jurisdictional Magistrate. The case was ``` CRL.A NO. 1830 OF 2008 ``` ..3.. committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P5 and MOs 1 to 3. 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 to 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 offences under Sections 55 (a) and 55(i) of the Abkari Act and convicted ``` CRL.A NO. 1830 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** him thereunder. 6. Heard Sri.K.V.Anil Kumar., 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 ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (a) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (b) The prosecution has not established the genuineness of the sample produced before the Court. ``` CRL.A NO. 1830 OF 2008 ``` ..5.. 9. The alleged seizure was effected on 27.12.2000 by the Asst. Sub Inspector of Police, PW3. The properties including the sample were produced before the Court only on 06.01.2001. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties including the sample. 10. 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 ``` CRL.A NO. 1830 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** production of the property. 11. 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 lead to the conclusion that tampering with samples could not be ruled out. 12. PW3, the Detecting Officer had prepared Ext.P1 seizure mahazar at the scene of occurrence. He has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW3 or other official witnesses have not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court to ensure the genuineness of the sample produced before the Court. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verifying the genuineness of the sample produced for analysis. Forwarding note/requisition for sending sample was not produced and marked. ``` CRL.A NO. 1830 OF 2008 ``` ..7.. 13. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 14. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 15. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof ``` CRL.A NO. 1830 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 16. In the instant case, as the prosecution has failed to establish the genuineness of the sample produced before the Court and forwarded to the Chemical Examiner’s Laboratory. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance. 17. 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 found not guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. In the result, (i) The Appeal is allowed ; ``` CRL.A NO. 1830 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offences 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