Soman s/o Kunjucherukkan 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 JULY 2021 / 18TH ASHADHA, 1943** **CRL.A NO. 1612 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 424/2000 OF ADDITIONAL** **SESSIONS COURT-I, MAVELIKKARA** ## **APPELLANT/S:** **SOMAN S/O KUNJUCHERUKKAN,THIRUNALLOOR PANAYIL VEEDU, VADAKKEMANKUZHI MURI, THEKKEKKARA VILLAGE.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 THE SUB INSPECTOR, KURATHIKADU POLICE STATION, KURATHIKADU.** **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.A No.1612/2006** -2- **K.BABU, J. ========================= Crl.A No.1612/2006 ========================== Dated this the 9[th] day of July, 2021** ## **JUDGMENT** **Aggrieved by the judgment dated 17.07.2006, passed by the learned Additional** **Sessions Judge-I, Mavelikkara in** **S.C.No.424/2000, the accused has preferred this appeal.** **2. The trial court convicted the accused** **for the offence punishable under Section 8(2) of the Abkari Act.** **3. The prosecution case is that on 25.04.1999 at 10.30 a.m., the accused was found in possession of 750 ml of arrack, at** ## **Crl.A No.1612/2006** -3- **Vakakkemankuzhi near Vasoorimala Temple, in Thekkekkara Village.** **4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and (i) of the Abkari Act before the Judicial First Class Magistrate Court, Mavelikkara. The case was committed to the Sessions Court, Alappuzha from where it was made over to the Additional Sessions Court-1, Mavelikkara.** **5. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and (i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by** ## **Crl.A No.1612/2006** -4- **the trial court for the aforesaid offences.** **6. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P9 and MOs1 and 2.** **7. 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 learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he** ## **Crl.A No.1612/2006** -5- **was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.1,00,000/- under Section 8(2) of the** **Abkari Act.** **8. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellant and** **Sri.M.S.Breez, the learned Senior Public** **Prosecutor appearing for the respondents.** **9. The learned counsel for the appellant canvassed the following grounds to challenge the impugned judgment:** **a) The delay in production of the properties before the court has not been satisfactorily explained.** ## **Crl.A No.1612/2006** -6- **b) The prosecution failed to establish that the articles allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory.** **c) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. d) The prosecution has not offered any satisfactory explanation for the delay in completing investigation.** **10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.** ## **Crl.A No.1612/2006** **11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.** **THE POINT** **12. PW1, the Assistant Sub Inspector of Police, Mavelikkara Police Station, on 25.04.1999 at about 10.40 a.m. reached in front of Vasoorimala Temple on getting reliable information that the accused was engaged in the sale of illicit arrack. He found the accused at the place of occurrence carrying a bottle having a capacity of 750 ml containing illicit arrack. On further verification, PW1 ascertained that the bottle contained illicit arrack. PW1** ## **Crl.A No.1612/2006** -8- **informed the Sub Inspector of Police, Kurathikad Police Station (PW4) regarding the incident as the place of occurrence was within the territorial jurisdiction of Kurathikadu Police Station. PW4 reached the place of occurrence and seized the contraband substance as per Ext.P2 seizure mahazar. PW4 collected samples from the arrack seized in three bottles, each containing 180 ml. PW4 has given evidence that the accused was arrested from the spot. He has given evidence that the sample bottles were sealed and labelled. PW4 registered Ext.P6 FIR based on Ext.P2 seizure mahzar.** **13. PW3, the independent witness examined** ## **Crl.A No.1612/2006** **to prove the incident proper, did not support the prosecution case. PW2, the Head Constable who had accompanied PW1, supported the prosecution case.** **14. PW4 has given evidence that he conducted investigation and submitted final report against the accused alleging the offences punishable under Sections 55(a) and 55(i) of the Abkari Act.** **15. The learned counsel for the appellant/accused contended that though Ext.P8 property list was prepared on 25.04.1999, the properties referred to therein were produced before the court only on 27.04.1999.** **16. PW4, the detecting officer, has given** ## **Crl.A No.1612/2006** **evidence that the properties were produced before the court on 25.04.1999 itself but those were returned to him with instruction to produce the same before the court on 27.04.1999.** **17. There is absolutely no convincing evidence regarding production of the properties before the court on 25.04.1999 and return of the same as stated by PW4. Therefore, the explanation given by PW4 regarding the delayed production of the properties cannot be accepted.** **18. On the question of delay in production of the properties, the Division Bench of this Court in Ravi v. State of Kerala & another (2011(3) KHC 121) held thus:** ## **Crl.A No.1612/2006** -11- **“8. We therefore, answer the reference as follows:** **(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)** **19. The Division Bench held that** **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 I have no hesitation to hold that there was no** ## **Crl.A No.1612/2006** -12- **satisfactory explanation for the delay in production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out.** **20. The learned counsel for the appellant further contended that the** **prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory. He has relied on the following circumstances to substantiate his contentions:** **i. The detecting Officer has not given evidence as to the nature and description of the seal affixed on the sample bottles** ## **Crl.A No.1612/2006** -13- **forwarded to the Chemical Examiner's laboratory.** **ii. Ext.P2, seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used.** **iii. The copy of the forwarding note, which gives evidence regarding the specimen seal affixed on the sample bottle, has not been produced before the court.** **iv. The prosecution has not given any satisfactory explanation for the delay in the analysis of the sample at the laboratory.** ## **Crl.A No.1612/2006** -14- **21. PW4, the detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample forwarded to the Chemical Examiner. Ext.P2, the seizure mahazar, is silent about the specimen of the seal stated to have been affixed on the sample bottle. 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 (vide: Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC** ## **Crl.A No.1612/2006** **191).** **22. The learned counsel for the accused further contended that there is no evidence to show that the specimen impression of the seal was provided to the Chemical Examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the sample bottle. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. The copy of the forwarding note, which contains the specimen of the seal used and the name of the official with whom the sample bottle was entrusted for delivering** ## **Crl.A No.1612/2006** -16- **the same to the Chemical Examiner's laboratory, has not been produced and marked in the case. In Ramachandran v. State of Kerala (2021(1) KLT 793), while dealing with a case in which forwarding note was not produced and marked, this Court held thus:** **“Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”** ## **23. In Rajamma v. State of Kerala** ## **(2014(1) KLT 506), this Court held thus:** **“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to** ## **Crl.A No.1612/2006** -17- **have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the ” appellant . (Emphasis supplied)** **24. In view of the fact that there is no** **evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P9 chemical analysis report.** **25. Ext.P9, certificate of chemical analysis, shows that the sample reached the laboratory on 6.5.1999. But the same was** ## **Crl.A No.1612/2006** -18- ## **analysed only on 24.05.2000.** **26. The learned counsel for the appellant contended that the delay in the analysis of the sample which has not been explained satisfactorily is also fatal to the prosecution. This Court in Krishnadas v.** ## **State of Kerala (2019 KHC 191) held as follows:** **“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, 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.”** ## **Crl.A No.1612/2006** -19- **27. In the instant case, the delay of more than one year in analysing the sample remains unexplained.** **28. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569), the Apex Court held that mere production of the 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.** **29. It is well 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** ## **Crl.A No.1612/2006** -20- **quantity of the alleged contraband substance said to have been seized from the possession of the accused. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband** **seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above.** **30. 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 offence punishable under Section 8(2) of the Abkari** ## **Crl.A No.1612/2006** -21- **Act. He is acquitted of the charge. He is set at liberty.** **Any amount deposited by the accused as per the interim orders of this Court shall be disbursed as per law.** **The Crl.Appeal is allowed as above.** **Sd/-** **K. BABU JUDGE** **STK**