Somarajan v. State (Criminal Appeal No.2477 of 2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** ## **CRL.A.No.2477 OF 2007** **AGAINST THE JUDGMENT IN SC 434/2001 DATED 27-11-2007 OF ADDITIONAL SESSIONS COURT FOR ABKARI ACT CASES, KOTTARAKKARA** ## **APPELLANT/ACCUSED:** **SOMARAJAN, S/O. VASU, CHARUVILA PUTHEN VEEDU, ELAPPUPARA,, PATHIRICKAL MURI, PATHANAPURAM VILLAGE.** **BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2 SUB INSPECTOR OF POLICE PATHANAPURAM POLICE STATION,, KOLLAM DISTRICT.** ## **SRI B JAYASURYA-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-08-2020, THE COURT ON 07-09-2020 DELIVERED THE FOLLOWING:** Crl.A.No.2477 of 2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.2477 of 2007 ---------------------------------------------- Dated this the 7[th] day of September, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.434/2001 on the file of the Court of the Additional Sessions Judge, Kottarakkara. 2. The prosecution case is that, on 02.07.1999, at about 17.00 hours, when PW3 Sub Inspector conducted search of House No.362 in Ward No.XI of Pathanapuram Panchayat, he found that a can containing 2½ litres of arrack was kept in the kitchen of the house. The Sub Inspector arrested the appellant/accused who was present in the house and seized the can containing arrack. 3. The trial court framed charge against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the offences and he claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P6 and X1 documents and MO1 material object. No evidence was adduced by the accused. Crl.A.No.2477 of 2007 3 5. The trial court found the accused not guilty of the offence punishable under Section 55(i) of the Abkari Act and acquitted him of that offence. The trial court found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court under Section 55(a) of the Abkari Act, the accused has filed this appeal. 7. Heard. Perused the records. 8. PW3 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the police constable who was in the police party led by PW3. His evidence corroborates the testimony of PW3 with regard to the material particulars of the occurrence. 9. PW1 is the independent witness examined by the prosecution. He did not support the prosecution case. He has not given any evidence regarding the occurrence. He denied the signature allegedly made by him in Ext.P1 seizure mahazar. He denied acquaintance with the accused. Crl.A.No.2477 of 2007 4 10. PW4 is the property clerk of the Magistrate's Court concerned. He has given evidence that he took sample of the liquid from the can which was produced before the court and sent the sample for chemical analysis. 11. Ext.P6 is the chemical analysis certificate received in respect of the sample of liquid which was forwarded for analysis. It shows that the sample of liquid contained 25.40% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find that the conviction entered against the appellant/accused cannot be sustained. The reasons are as follows. 13. PW3 Sub Inspector has given evidence that he conducted search of the house of the accused and seized a can containing 2.500 litres of arrack from the kitchen of the house as per Ext.P1 seizure mahazar and arrested the accused. 14. PW3 has given evidence that he prepared Ext.P3 custody memo for arresting the accused. In Ext.P3 custody memo, the date and time of the arrest of the accused are shown as 02.07.1999 at 17:30 hours. PW3 has given evidence that he returned to the police station with the accused and the can containing arrack and registered case against the accused as Crime No.198/1999. Ext.P4 F.I.R shows Crl.A.No.2477 of 2007 5 that the case against the accused was registered at 18:30 hours on 02.07.1999. However, in the custody memo allegedly prepared by PW3 at the spot of the occurrence at 17:30 hours on 02.07.1999, the crime number of the case, which was registered at 18:30 hours on that day, is mentioned. The prosecution has not explained this anomaly. This indicates that the occurrence had not taken place in the manner alleged by the prosecution. 15. Presence of the crime number of the case in the arrest memo allegedly prepared prior to the registration of the case creates doubt that the arrest of the appellant and the seizure of the liquor were effected by the police not in the manner alleged by the prosecution or as spoken to by the detecting officer (See **Rafeeque v. Sub Inspector : 2020 (3) KHC 715 : 2020 (4) KLT 188** ). The benefit of that doubt shall go to the appellant. 16. It is also pertinent here to note that even the date of production of the accused before the Magistrate on 03.07.1999 is shown in Ext.P3 custody memo dated 02.07.1999. 17. PW3 has given evidence that he produced the can containing arrack in the court as per Ext.P5 property list. Ext.P5 property list would show that the can allegedly containing arrack was produced before the court only on 06.07.1999. PW3 has stated that he produced the can before the court as per Ext.P5 property list on Crl.A.No.2477 of 2007 6 02.07.1999 itself but the can was returned to him for the reason that there was no space in the court to keep it there and he re-submitted the can before the court on 06.07.1999 and that he had kept the can in his safe custody till that time. 18. The evidence given by PW3 regarding the production of the can in the court on 02.07.1999 is not true. The endorsement made by the learned Magistrate on Ext.P5 property list as “verify and receive” is dated 06.07.1999. This would clearly show that the can was produced before the court only on 06.07.1999. Moreover, Ext.P4 F.I.R itself was registered against the accused only at 18:30 hours on 02.07.1999. It is highly improbable that the court had remained open even after 18:30 hours on that day and that the Sub Inspector had produced the property before the court on the date of the occurrence itself. 19. The property clerk of the Magistrate's Court concerned, who was examined as PW4, has not given any evidence that the can allegedly containing arrack was produced in the court on 02.07.1999 and it was returned to the Sub Inspector for want of space in the court. Ext.X1 is the copy of the relevant page of the property register kept in the Magistrate's Court concerned. It would show that the can allegedly containing arrack was produced before the court only on 06.07.1999. Crl.A.No.2477 of 2007 7 20. PW3 Sub Inspector has not offered any explanation for the delay in producing the can allegedly containing arrack before the court. But, he made a deliberate attempt to show that he had produced it in the court on the date of occurrence itself. 21. Decisions are umpteen which hold that unexplained delay in producing the samples of the contraband substance before the court creates suspicion that the samples have been tampered with. Possibility of tampering or meddling with the samples cannot be ruled out in such cases. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , has held that law does not mandate production of seized articles forthwith before the court and it enjoins only reporting the seizure forthwith to the court. But, it has also been held that production of the property before the court shall take place without unnecessary delay and if there is delay, it shall be satisfactorily explained. 22. The evidence of PW3 would show that the sample of liquid from the can was not drawn at the spot of the occurrence. PW4, the property clerk of the Magistrate's Court, has given evidence that sample of the liquid from the can was taken by him and it was forwarded for analysis. The requisition allegedly submitted by PW3 for taking sample and for sending it for analysis is not brought out in Crl.A.No.2477 of 2007 8 evidence by the prosecution. Moreover, there is no material to show that the Magistrate concerned had passed any order for taking sample from the can produced in the court. There is also no record relating to drawing of sample by PW4 from the can which was produced by PW3 in the court. 23. In the aforesaid circumstances, there is no assurance that the can which was produced by PW3 in the court was the very same can which was allegedly seized by him from the house of the accused. There is also no assurance that the sample which was forwarded for analysis was the very same sample which was drawn from the can which was produced before the court by PW3. There is further no assurance that Ext.P6 chemical analysis report relates to the sample of the liquid contained in the can allegedly seized from the house of the accused by PW3. 24. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related. (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 25. The trial court has not properly taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the appellant/accused by the trial court cannot be sustained. Crl.A.No.2477 of 2007 9 26. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr