Suja v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2019-07-29
Court Decision / Holding: The criminal appeal is allowed. The conviction and sentence passed by the court below are set aside and the appellant is acquitted. The bail bond is discharged.
Final Disposition: Acquitted

Parties to the Case

Appellants / Petitioners

Suja

Respondents

State of Kerala represented by its Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• G.P. Shinod
• Manu V.
• Ram Mohan G.

Counsels for Respondents

• Sri.C.S.Hrithwik, Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court criminal appeal (CRL.A. No. 588 of 2007) by the appellant Suja challenging conviction under Abkari Act Sections 55(a) and 8(2) based on possession of 12 litres of arrack on 30 August 1998. The trial court’s verdict hinged on the chain of custody and the chemical analysis of the contraband (Ext. P9). The defense argued that there was inordinate and unexplained delay in producing the contraband before the court, undermining the reliability of the link between the seized article and the sample analyzed. Documentation shows the contraband was produced before the court on 3 November 1998, with the search list produced on 10 September 1998, and that PW3 claimed to have produced it earlier on multiple occasions through police constables, which the court did not accept due to lack of proper endorsements. The court found PW3’s evidence unreliable and highlighted unexplained delays in production and concerns over safe custody, asserting that the sample’s connection to the contraband and the laboratory analysis could not be guaranteed. The court also relied on a precedent regarding lack of a sample seal on the forwarding note. Ultimately, the High Court allowed the appeal and acquitted the appellant, discharging the bail bond.

Provisions of Law Cited

Abkari Act, Section 55(a)Abkari Act, Section 8(2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel argued that there was an inordinate and unexplained delay in producing the contraband before the court. This delay undermines the chain of custody and raises questions whether the contraband produced in court was the same seized from the appellant. The absence of proper endorsement and tamper-proof handling, including issues with the forwarding note’s sample seal, cast serious doubt on the link between the contraband and the laboratory sample. Consequently, reliance on Ext. P9 (chemical analysis) cannot sustain the conviction. The prosecution failed to establish a reliable nexus between the seized contraband, its safe custody, and the sample analyzed.

Contentions of Respondents

The State contended that the evidence including Ext. P2, Ext. P7 and the testimony of PW3 established possession of contraband and the requisite breach of the Abkari Act. It was argued that despite some delay, the prosecution’s material and the chemical analysis provided a proper basis for conviction, and the defense challenges were insufficient to negate the chain of custody or the integrity of the sample.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishnan H. v. State of Kerala	2015 (1) KHC 822	Positive	Cited for the proposition that the absence of a sample seal on the forwarding note can lead to a presumption that the seal was not provided on the original forwarding note, casting doubt on the tamper-proof handling of the sample and undermining the link between contraband and laboratory analysis; used by the court to support acquittal due to lack of conclusive evidence of proper sample handling.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **CRL.A.No.588 of 2007** **AGAINST THE ORDER/JUDGMENT IN SC 18/2006 of ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM DATED 01-03-2007** **AGAINST THE ORDER/JUDGMENT IN CP 164/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,ATTINGAL** ## **APPELLANT/S:** **SUJA** **(WRONGLY SHOWN AS SUGATHA IN THE IMPUGNED JUDGMENT AND POLICE CHARGE SHEET),, D/O.SUBHASHINI, RESIDING AT PANAYIL VEEDU,, PARUTHIKUZHY, NEDUMANGAD, THIRUVANANTHAPURAM, (WRONGLY SHOWN AS RESIDING AT THADATHARIKATHU VEEDU, KANNAMBARA,, ANAKUDI MURI, PANGODE VILLAGE, THIRUVANANTHAPURAM IN THE CHARGE SHEET FILED BY THE POLICE AS WELL AS IN THE JUDGMENT OF THE COURT BELOW.).** **BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-2-** **CRL.A.No.588 of 2007** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Sections 55(a) and 8(2) of the Abkari Act. 2. The prosecution allegation is that on 30.08.1998, at about 2.00 p.m., the appellant was found in possession of 12 litres of arrack, in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellant has argued that since there was inordinate and unexplained delay in producing the contraband before the court, there cannot be any guarantee that the contraband produced before the court was the contraband seized from the appellant. **-3-** **CRL.A.No.588 of 2007** 5. Ext.P7 is the property list, which would show that the contraband article was produced before the court only on 03.11.1998. Ext.P2 is the search list, which was produced before the court only on 10.09.1998. PW3 produced the contraband and the article before the court through a police constable. PW3 stated during the questioning by the court that he produced the contraband before the court on the very same day. However, the Thondy Clerk had refused to accept the same. PW3 further stated that he again produced the contraband before the court on so many occasions through the police constable. However, the Thondy Clerk did not accept the same. PW3 further stated that there is no material to show that he produced the contraband before the court as stated by him. He further stated that he did not record the statement of the Police Constable also in this regard. **-4-** **CRL.A.No.588 of 2007** Having gone through the evidence of PW3, this Court is not at all convinced about the evidence of PW3 that he produced the contraband article before the court on the date of seizure and on so many other occasions. The said part of evidence of PW3 is totally unacceptable, particularly when there is no endorsement to support the said part of evidence of PW3. It is not discernible as to why PW3 did not record the statement of the Police Constable, with whom he had sent the contraband, if the Thondy Clerk concerned had refused to accept the same. In the absence of any such material, the only inference possible from the evidence of PW3 is that his evidence in this regard cannot be correct. The explanation for the delay in producing Ext.P2 before the court is that even though he entrusted Ext.P2 with the station writer, the station writer caused the delay. The said **-5-** **CRL.A.No.588 of 2007** part of the evidence of PW3 is also not acceptable when the entire evidence of PW3 is taken into consideration. The consequence is that there is no explanation for the long delay in producing the contraband before the court. The evidence of PW3 with regard to the safe custody of the sample is also not believable, particularly when PW3 did not state about the same in his examination-in-chief or in his cross-examination. He stated so, only when he was asked by the court. Having gone through the evidence of PW3, it appears that the evidence of PW3 does not inspire confidence. The delay as such is not always fatal to the prosecution case. However, the unexplained delay is, no doubt, fatal to the prosecution case. In this case, there was unexplained delay from 30.08.1998 to 03.11.1998 in producing the contraband before the court. Therefore, there cannot be any **-6-** **CRL.A.No.588 of 2007** guarantee that the contraband produced before the court was the contraband seized from the appellant, particularly when there is no convincing evidence with regard to the safe custody of the contraband till its production before the court. Therefore, there is no guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, there is no link evidence connecting the appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below, relying on Ext.P9 certificate of chemical analysis cannot be sustained. 7. There is yet another ground to set aside the conviction and sentence passed by the court below. It appears that the sample was drawn from the contraband after its production before the court. **-7-** **CRL.A.No.588 of 2007** Ext.P8 is the copy of the forwarding note which does not contain the sample seal at the space provided for the same. This Court in Krishnan H. v. State of Kerala [2015 (1) KHC 822] held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided on the original forwarding note. In this case, no evidence was adduced by the prosecution to prove that the sample seal was provided on the original forwarding note. In the said circumstance, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Consequently, there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, there cannot be any link **-8-** ## **CRL.A.No.588 of 2007** evidence connecting the appellant with the sample analysed in the laboratory. For the said reason also, the conviction and sentence passed by the court below, relying on Ext.P9 certificate of Chemical Analysis, cannot be sustained. In the result, this criminal appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE** Nkr/29.07.19