Sojan S/o Paily v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** **CRL.A NO. 1144 OF 2007** **AGAINST THE JUDGMENT IN SC 461/2005 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, THODUPUZHA, IDUKKI** ## **APPELLANT:** **SOJAN, S/O. PAILY, THEKKOTTUKUNNEL HOUSE, KALKOONTHAL VILLAGE, ERATTAYAR KARA.** BY ADVS. K.M.KURIAN P.VIJAYAKUMAR ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA SUB INSPECTOR OF POLICE, KATTAPPANA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1144 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Crl.A No.1144 of 2007** --------------------------------------Dated this the 3[rd] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 25.5.2007, passed by the Additional Sessions Judge (Adhoc) II, Thodupuzha in S.C No.461/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offences punishable under Sections 8(2) and 55 (g) of the Abkari Act. 3. The prosecution case is that the accused was found in possession of 300 ml of arrack and utensils for distillation of arrack on 25.2.2003 at 4.15 pm in building No.IV/236 of Erattayar Grama Panchayath. The offence was detected by the Additional Sub Inspector of Police, Kattappana. 4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 8(2), 55(b) and 55(g) of the Abkari Act before the Judicial First Class Magistrate, Kattappana. The case was committed to the Sessions Court, Thodupuzha from where it was Crl.A No.1144 of 2007 3 made over to the Additional Sessions Court (Adhoc) II, Thodupuzha. On appearance of the accused charges were framed against him for the offences punishable under Sections 8(2), 55(b) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges levelled against him and therefore, he came to be tried by the trial court for the aforesaid offences. 5. The evidence for the prosecution consists of oral evidence of PWs1 to 5, Exts.P1 to P7 and MOs1 and 2. 6. After closure of the evidence on behalf of the prosecution, the 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 that there is 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 from both sides, found that the accused is guilty of offences under Sections 8(2) and 55(g) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay fine of Rs.1 lakh for the offence under Section 55(g) of the Abkari Act. He was also sentenced to undergo simple imprisonment for Crl.A No.1144 of 2007 4 a term of six months for the offence under Section 8(2) of the Abkari Act. 7. Heard Sri.K.M.Kurian, the learned counsel for the appellant and Sri.M.C.Ashi, the learned Public Prosecutor. 8. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction and sentence: a) The prosecution has not satisfactorily explained the delay in the production of the properties including the sample before the court. b) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was subjected to analysis at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. Crl.A No.1144 of 2007 5 ## THE POINT 11. PW2, the Additional Sub Inspector of Police, Kattappana Police Station on 25.2.2003 at 3.45 pm., on getting reliable information that the accused was engaged in distilling of arrack at his residence at Gourippara, proceeded to the house of the accused after sending search memorandum, as required, to the court and searched the residence. The accused was there in his house. PW2 seized 300 ml of arrack in a 375 ml bottle and two aluminum pots used for distillation of arrack. The seizure was effected as per Ext.P1 mahazar. The accused was arrested from the spot. PW2 registered FIR No.86/2003 of Kattappana Police Station. 12. PWs 1 and 4, the independent witnesses, did not support the prosecution case. PW5, the Secretary of Erattayar Grama Panchayath, has given evidence that the building from where the contraband substances were recovered belonged to the father of the accused. PW3 completed investigation and submitted final report. 13. The learned counsel for the appellant/accused, firstly, contended that the prosecution has not satisfactorily explained the delay in the production of the properties including the sample Crl.A No.1144 of 2007 6 before the court. The alleged seizure was on 25.2.2003. Ext.P1 seizure mahazar, Ext.P3 FIR and Ext.P2 arrest memo and the accused were produced before the court on 26.2.2003 itself. Ext.P4, the list of properties sent to the Magistrate, would show that the properties allegedly seized including the sample were produced before the court only on 27.2.2003. The detecting officer has given evidence that the properties were in his safe custody. The explanation for the delay in the production of the properties given by PW2 is not satisfactory. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another (2011(3) KHC 121)** held thus: “8(1).It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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.” (Emphasis supplied) 14. The Division Bench held that the production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is Crl.A No.1144 of 2007 7 no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead us to the conclusion that tampering with the samples could not be ruled out. 15. The learned counsel for the appellant, secondly, contended that the prosecution has not succeeded in establishing that the contraband substance, allegedly recovered from the place of occurrence, eventually reached the hands of Analyst in the Chemical Examiner's laboratory. He has relied on the following aspects to substantiate his contentions: a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. b) Ext.P1 seizure mahazar is silent regarding the nature of the seal used by the detecting officer. c) The prosecution has not satisfactorily explained the delay in analysis of the sample in the Chemical Examiner's laboratory. 16. The oral evidence of PW2 (detecting officer) is silent regarding the nature and description of the seal stated to have Crl.A No.1144 of 2007 8 been affixed on the bottle containing the sample. Ext.P1 seizure mahazar does not contain the nature of the seal affixed on the bottle containing the sample. 17. The detecting officer who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. (See: **Bhaskaran v. State of** **Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191).** 18. The learned counsel for the appellant/accused further contended that the copy of the forwarding note does not contain the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory. This Court is in the dark as to the official with whom the sample was sent to the Chemical Examiner's laboratory. The date on which the sample was handed over to the official concerned for delivering the same to the Chemical Examiner's laboratory is also not mentioned in Ext.P5. Ext.P6 certificate of chemical analysis would show that the sample was received in the laboratory on 25.7.2003 through PC No.1860. 19. The admitted case of the prosecution is that the Crl.A No.1144 of 2007 9 sample remained in the custody of the property clerk of the court and Police Constable No.1860, who handed over the sample to the Chemical Examiner's laboratory. There is no evidence regarding the period during which the property clerk of the court and the police official concerned retained the sample in their custody. Ext.P5 copy of the forwarding note would further show that the forwarding authority has affixed initial thereon on 31.3.2003. In such a situation, it was imperative for the prosecution to examine either the property clerk of the court or the police official concerned to establish the tamper proof custody and despatch of the sample to the laboratory. (See: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314], Kumaran v. State of Kerala (2016(4) KLT 718)** . 20. Ext.P6 would show that the sample reached the laboratory on 25.7.2003. But the same was analysed only on 29.10.2004. While considering the question of delay in analysis of the sample in **Krishnadas v. State of Kerala (2019 KHC 191)** this Court held thus: “ 6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Crl.A No.1144 of 2007 10 Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 21. In the instant case the delay of more than one year in the analysis of the sample remains unexplained. 22. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569** ), the Apex Court held that mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 23. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. [vide: **State of Rajasthan v. Daulat Ram** (supra)] 24. In the instant case the prosecution was unable to establish the link connecting the accused with the contraband Crl.A No.1144 of 2007 11 seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence. 25. 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 not guilty of the offences punishable under Sections 55(g) and 8(2) of the Abkari Act and he is acquitted of the charges. The appellant is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU JUDGE** ab