Sudheesh Kumar v. State of Kerala; Satheesh Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 2002 OF 2008`** ``` AGAINST THE JUDGMENT IN SC 1046/2002 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA ``` ## **`APPELLANT/S:`** ``` SUDHEESH KUMAR S/O.KRISHNA PILLAI, SATHEESHNA VILASOM, KURA MURI,, THALAVOOR VILLAGE, KOLLAM DISTRICT. BY ADV SRI.K.V.ANIL KUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA RERESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SMT S. REKHA, SR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2022, ALONG WITH CRL.A.1877/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` ..2.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 1877 OF 2008`** ``` AGAINST THE JUDGMENT IN SC 1046/2002 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA ``` ## **`APPELLANT:`** ``` SATHEESH KUMAR S/O. GOPINATHA PILLAI,, KOCHUVILA PUTHEN VEEDU,, KURA MURI, THALAVOOR VILLAGE. BY ADV SRI.T.M.ABDUL LATHEEF ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUNNICODE. ``` ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY SMT REKHA S. SR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2022, ALONG WITH CRL.A.2002/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** These appeals arise from the judgment dated 12.08.2008 in S.C.No.1046 of 2002 passed by the Additional Sessions Judge (Abkari Cases), Kottarakkara. The appellant in Crl.A.1877 of 2008 is accused No.1 and the appellant in Crl.A.No.2002 of 2008 is accused No.2. 2. The prosecution case is that on 25.06.1999 at 6.30 pm, the accused were found in possession of illicit arrack for the purpose of sale, at Kura in violation of the provisions of the Akbari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) 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 ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** charges were framed against them for the offences punishable under Sections 55(a) and 55(i) 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. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P7 and MOs 1 to 3. Exhibits X1 and X1(a) were marked as Court exhibits. 5. After the closure of the evidence on behalf of the prosecution, the 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 to adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(a) and 55(i) of ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** the Abkari Act and convicted them thereunder. The accused were sentenced to undergo simple imprisonment for a term of one year each and pay a fine of Rs.One Lakh each under Sections 55(a) and 55(i) of the Abkari Act. 6. Heard K.V. Anil Kumar and Sri. T.M. Abdul Latiff, the learned counsel appearing for the appellants/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellants relied on the following circumstances to substantiate their contentions:- ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** a. The prosecution failed to establish the identity of accused No.1. b. The prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 9. The alleged seizure was effected on 25.06.1999. According to PW3 the Detecting Officer, on seeing the police party, accused No.1 left the scene after abandoning the can in his possession. He could not be arrested. PW3 gave evidence that he had previous acquaintance with accused No.1. But in Ext.P2 seizure mahazar he stated that he got information regarding the person who left the scene from the other accused. In Ext.P2 seizure mahazar, PW3 had not narrated any of the identifying features of the man who left the scene. The version of PW3 that he had previous acquaintance with the accused cannot be accepted, as he failed to mention the same in Ext.P2 ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** mahazar and further that he noted the whereabouts of the man who left the scene from the other accused. Going by the evidence of PW3 and the other official witnesses, they had only a fleeting glimpse of the person who ran away from the scene. 10. It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another** ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` ..8.. **[AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]** . So on this ground alone the prosecution must fail. 11. Therefore, the necessary conclusion is that the prosecution failed to establish the identity of the person who ran away from the scene of occurrence after abandoning the can containing arrack. 12. The learned counsel for the appellants further contended that the prosecution has not established that the arrack seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. The learned counsel relied on the following circumstances to substantiate their contentions. 1. The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. 2. The act of drawing sample by the Property ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Clerk from the bulk quantity of the contraband substance produced before the Court has no sanction of law. 3. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verification. 13. Though the alleged seizure was effected on 25.06.1999, Ext.P5 shows that the properties including the sample were produced before the Court only on 30.06.1999. The prosecution has absolutely no explanation for the delay in the production of the properties including the sample before the Court. 14. 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 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 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.” 15. 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. 16. 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. 17. The Detecting Officer had not drawn sample from the contraband seized from the place of occurrence. PW5 the Property Clerk attached to the jurisdictional Magistrate had drawn sample and forwarded the same to ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** the Chemical Examiner‘s Laboratory for examination. The learned counsel for the appellants challenged the legality of the act of the Property Clerk drawing sample from the contraband produced and forwarding the same to the Chemical Examiner‘s Laboratory. This Court in **Baburaj v. State of Kerala** [2021 (6) KHC 92] had considered the legality of the procedure in which an officer of the Court drew the sample and forwarded the same to the laboratory. In **Baburaj** (supra) this Court held thus: “35.Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` ..12.. the contraband produced before him, the question of independent consideration of fnal report laid by the investigating oficer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala** [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of** **Kerala** [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory.“ 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting oficer.“ ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 18. In **Baburaj** , this Court further held that as the procedure adopted in drawing sample from the contraband substance by a Clerk of the Court has no sanction of law, the genuineness of such sample forwarded to the Chemical Examiner's Laboratory is doubtful and no evidentiary value can be given to the Certificate of Chemical Analysis prepared based on the sample so drawn. 19. As the prosecution failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P1 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 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 appellants/accused are ``` CRL.A NOs. 2002 & 1877 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** therefore found not guilty of the offences punishable under Sections 55(a) and 55(i) 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 are acquitted of the offences alleged; - (iv) They are set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. **Sd/K. BABU, JUDGE** kkj