Sudheer, S/o Sulaiman v. State of Kerala

``` CRL.A NO. 785 OF 2009 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 CRL.A NO. 785 OF 2009 ``` ``` AGAINST THE JUDGMENT DATED 30.03.2009 IN SC NO.296 OF 2008 OF ADDL. SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA ``` ## **`APPELLANT:`** ``` SUDHEER, S/O.SULAIMAN, VATTAVILA VEEDU, NEAR PULARI JUNCTION, EDAMON VILLAGE, PUNALUR,, KOLLAM DIST. BY ADV SRI.SYAM J SAM ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, THENMALA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY SRI.G.SUDHEER-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 2 ``` ## **`K.BABU, J`** ``` -------------------------------- ``` ## **`Crl.A No.785 of 2009`** ``` ----------------------------- Dated this the 15[th] day of March, 2024 ``` ## **`J U D G M E N T`** ``` Aggrieved by the judgment dated 30.3.2009, passed by the Additional Sessions Court, (Abkari ``` ``` Cases), Kottarakkara in S.C.No.296/2008, accused ``` ``` No.1 has preferred this appeal. ``` ``` 2.The Trial Court convicted accused No.1 for ``` ``` the offences punishable under Sections 55(b) and ``` ``` 55(g) of the Abkari Act. ``` ``` 3.The prosecution case is that on 21.11.2002 ``` ``` at 3.45 pm. the accused were found manufacturing ``` ``` arrack using wash and implements for illicit ``` ``` distillation at Edamon Muri in violation of the ``` ``` provisions of the Abkari Act. ``` ``` 4.After completing the investigation, final ``` ``` report was submitted against the accused for the ``` ``` offences punishable under Sections 55(b) and 55(g) of ``` ``` the Abkari Act before the Judicial First Class ``` ``` Magistrate Court I, Punalur. The case was committed ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 3 ``` ``` to the Sessions Court, Kollam from where it was made over to the Trial Court. On the appearance of the accused, charges were framed against them for the offences punishable under Sections 55(b) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court for the aforesaid offences. ``` ``` 5.The prosecution examined PWs.1 and 2 and proved Exts.P1 to P5 and MOs 1 to 3. ``` ``` 6.After the closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of defence, DW1 was examined. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offences punishable under Sections 55(b) and 55(g) of the Abkari Act and convicted him thereunder. ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 4 ``` ``` Accused No.2 is acquitted of the offences alleged. ``` ``` 7.Heard Sri.Syam J. Sam, the learned counsel for the appellant/ accused No.1 and Sri.G.Sudheer, ``` ``` the learned Public Prosecutor for the respondent. ``` ``` 8.The learned counsel for the appellant ``` ``` challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband seized from the scene of occurrence eventually reached the Chemical Examiner's laboratory. ``` ``` 9.The learned counsel for the appellant relied ``` ``` on the following circumstances to substantiate his contentions: ``` ``` i)The inordinate delay in production of the properties including the sample has not been properly explained by the prosecution. ``` ``` ii)Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. ``` ``` iii)The forwarding note has not been produced and marked. ``` ``` iv)There is no explanation for the custody of the sample during the interregnum from ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 5 ``` ``` 23.12.2002 to 27.12.2002. ``` ``` 10.The alleged seizure was effected on 21.11.2002. The properties including the sample were produced before the Court only on 17.12.2002, which is evident from Ext.P4 property list. The prosecution has not offered any proper explanation for the delay. ``` ``` 11.On the question of delay in production of the properties, a 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) ``` ``` 12.The Division Bench held that production of the property before the court should take place ``` ``` CRL.A NO. 785 OF 20096 ``` ``` without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. ``` ``` 13.The detecting officer had prepared Ext.P1 seizure mahazar as a contemporaneous document. The detecting officer had drawn the sample at the scene of occurrence. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. No specimen seal was produced before the Court. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner for comparison. The forwarding note has not been produced and marked before the Court. ``` ``` 14.In Bhaskaran v. State of Kerala (2020 KHC 5296), this Court held that the nature of the seal used 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. ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 7 ``` ``` 15.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. ``` ``` 16.InRamachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which ``` ``` forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 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. ``` ``` 17.The prosecution has not given evidence as ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 8 ``` ``` to the date on which the sample was forwarded to the laboratory. Ext.P5 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 23.12.2002 of the Judicial First Class Magistrate Court I, Punalur. Ext.P5 further shows that the sample was delivered in the laboratory only on 27.12.2002 through a Police Constable No.4266. The custody of the sample during the interregnum from 23.12.2002 to 27.12.2002 has not been explained by the prosecution. The sample remained in the custody of the property clerk and the police official who delivered the sample in the laboratory. These officials were not examined by the prosecution. Non-examination of those officials, who handled the sample during the course of its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]. ``` ``` 18.In the instant case, the prosecution was ``` ``` unable to establish the link connecting the accused with the contraband seized and the sample analysed in ``` ``` CRL.A NO. 785 OF 2009 ``` ``` 9 ``` ``` the laboratory. ``` ``` 19.Since the prosecution failed to establish ``` ``` the contraband allegedly seized from the place of ``` ``` occurrence was subjected to analysis in the laboratory, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. ``` ``` 20.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 No.1 is, therefore, not guilty of the offences punishable under Sections 55(b) and 55(g) of the ``` ``` Abkari Act and he is acquitted of the offences alleged. He is set at liberty. ``` ``` The Crl.Appeal is allowed as above. ``` ``` K.BABU JUDGE ``` ``` ab ```