Sudeendran S/o Sasidharan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 CRL.A NO. 1019 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 1388/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA APPELLANT/ACCUSED: ``` ``` SUDEENDRAN. S/O SASIDHARAN, SIVALAYAKKONAM VARUVILA VEEDU,, PERINGAMALA, VENGANOOR DESOM,, PALLICHAL VILLAGE. BY ADV SRI.S.D.ASHOKAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, BALARAMAPURAM, THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1019 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 27.04.2007, passed by the Additional Sessions Court, Neyyattinkara in Sessions Case No. 1388 of 2001, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.06.2000, at 5 p.m., the accused was found in possession of four litres of illicit arrack in a five litre white jerrycan at Pallichal 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 58 of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the offence punishable under ``` CRL.A NO. 1019 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** Section 58 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 PWs1 to 3 and proved Exts.P1 to P8 and MO1. 5. After the 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 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 offence under Section 58 of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. 1 Lakh under Section 58 of the Abkari Act. 6. Heard Sri S.D. Asokan, the learned counsel ``` CRL.A NO. 1019 OF 2007 ``` ..4.. appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel relied on the following circumstances to substantiate his contentions:- - (i) The delay in the producing the properties including the sample has not been satisfactorily explained by the prosecution. - (ii) The specimen of the seal has not been produced before the Court to ensure the genuineness of the sample produced. 8. The alleged seizure was on 24.06.2000. Ext.P4 list of properties shows that the properties including the sample were produced before the Court 26.06.2000. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court. 9. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a ``` CRL.A NO. 1019 OF 2007 ``` ..5.. ## 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 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. PW2, the detecting officer, has no case that he had narrated the nature and description of the seal ``` CRL.A NO. 1019 OF 2007 ``` ..6.. stated to have been affixed on the bottle containing the sample in the seizure mahazar. While giving evidence, he deposed that he had used a seal with impression ‘L’. He admitted that he had not produced the specimen of the seal before the Court. Ext.P7, the copy of the forwarding note shows that no specimen seal was incorporated on it. PW3, the property clerk of the court gave evidence that she had compared the specimen seal produced and the seal affixed on the bottle containing the sample. The oral evidence of PW3 is not credible in view of the admission of the detecting officer that no specimen seal was produced before the Court. Moreover, Ext.P7, the forwarding note, also makes it evident that no specimen seal was produced before the Court. Therefore, the prosecution failed to establish the genuineness of the sample produced before the Court. ## 12. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used ``` CRL.A NO. 1019 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 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. 13. 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. 14. In the absence of any evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory to ascertain the genuineness of the sample, Ext.P5 certificate of chemical analysis has no evidentiary value. 15. In **Vijay Pandey v. State of** U.P (AIR 2019 SC ``` CRL.A NO. 1019 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 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. 16. 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. 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. 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. ``` CRL.A NO. 1019 OF 2007 ``` ..9.. The appellant/accused is therefore found not guilty of the offence punishable under Section 58 of the Abkari Act. In the result, - (i) the Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the charge ; - (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