Sreenivasan S/o Nellan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.A NO. 733 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 71/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT FAST TRACK (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` SREENIVASAN S/O NELLAN KOLLARAPUNATHIL HOUSE, MAKKADA AMSOM,, KAKKODY. BY ADV SRI.P.V.ANOOP ``` ## **`RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY SMT REKHA S, SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 733 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 06.02.2008, passed by the Additional Sessions Court, Fast Track (Adhoc -II) Kozhikode in Sessions Case No. 71 of 2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 22.12.2001 at 5.45 pm, the appellant/accused was found carrying two litres of illicit arrack through Bethirur - Chelapram Road in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 733 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P6 and MO1. 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 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 offence under Section 8(2) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 733 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 6. Heard Sri. P.V.Anoop, 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 following grounds:- (1) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. - (2) The Officer who detected the offence is not an empowered Officer to effect arrest and seizure. 8. The prosecution case is that on 22.12.2001, the accused was arrested from the place of occurrence along with the contraband substance. The arrest and seizure were effected by the Excise Inspector, Excise Enforcement and Anti-Narcotic Special Squad, Kozhikode ``` CRL.A NO. 733 OF 2008 ``` ..5.. (PW1). According to PW1, he had produced the properties, including the sample, before the Excise Inspector, Chelannur. PW6 gave evidence that the properties, including the sample, were produced before the Court on 28.12.2001. Explanation for the delay, according to PW6, is that initially on 23.12.2001 he had sent the properties to the Court, but the same were not received. He kept the same in his safe custody and later produced it on 28.12.2001. There is nothing on record to show that the properties were forwarded to the Court on 23.12.2001. The explanation offered by PW6 for the delay in the production of the properties is no way acceptable. 8. 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 ``` CRL.A NO. 733 OF 2008 ``` ..6.. '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.” 9. 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 production of the property. 10. 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. 11. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner’s Laboratory. Ext.P5, Certificate of ``` CRL.A NO. 733 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 28.12.2001 of the JFMC, Koilandy. Ext.P5 further shows that the sample reached the laboratory only on 02.01.2002 through an Excise Guard by name M.P. Abdul Azeez. 12. In the absence of any contra evidence, the necessary inference is that the sample was forwarded to the laboratory from the Court on 28.12.2001. The custody of the sample during the interregnum from 28.12.2001 to 02.01.2002 has not been satisfactorily explained by the prosecution. The excise official who received the sample from the Court and delivered the same to the laboratory has not been examined as a witness. Non-examination of the property clerk who was in custody of the sample and the Excise Official who produced the sample before the Court is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with during its transit ``` CRL.A NO. 733 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** from the Court to the laboratory. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 13. The learned counsel for the appellant further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case, the offence was detected by PW1, Excise Inspector, Excise Enforcement and Narcotic Special Squad, Kozhikode. The detection was made on 22.12.2001. The Government issued as notification SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range ``` CRL.A NO. 733 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad , Kozhikode had no such powers. ``` CRL.A NO. 733 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 14. The learned counsel for the appellant submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 15. The learned counsel for the appellant relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in **Suresh's** case (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 16. The prosecution has not succeeded in establishing the link evidence connecting the accused with the contraband seized. 17. The upshot of the above discussion is that the conviction and sentence 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 offence punishable under ``` CRL.A NO. 733 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** Section 8(2) of the Abkari Act. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the appellant/accused is set aside ; - (iii) The accused is acquitted of the offence 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