Sukumaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 2471 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT IN SC 222/2006 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC), PATHANAMTHITTA ``` ``` CP 15/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR APPELLANT/S: ``` ``` SUKUMARAN, AGED 56 YEARS, S/O DAIVATHAN, SUBAHBHAVANAM, THOOVAYOOR THEKKU MURI, KADAMBANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT BY ADV SRI.V.SETHUNATH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ## **`OTHER PRESENT:`** ``` BY SMT REKHA S. SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2471 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 15.10.2008, passed by the Additional Sessions Court (Adhoc) Fast Track-I, Pathanamthitta in Sessions Case No.222 of 2006, the accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 09.08.2003 at 10.00 a.m., the accused was found in possession of 8 litres of spirit at Plavilnalkavu-Mannadi 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 55(a) 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. 2471 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 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, became to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 4 and proved Exts P1 to P6 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. DW1 was examined on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri. V. Sethunath, the learned counsel ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- - (i) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (ii) There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the laboratory. - (iii) The various officials who handled the sample ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** during its transit from the Court to the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 09.08.2003 by PW1, the Assistant Excise Inspector, Adoor Excise Range. He produced the properties including the sample before the Court only on 12.08.2003 as is evident from Ext.P5 property list. No satisfactory explanation was offered by the prosecution for the delay caused. 10. 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 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 ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 11. 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. 12. The Detecting Officer had prepared Ext.P1 seizure mahazar at the scene of occurrence. In Ext.P1 seizure mahazar, he has not narrated the nature and description of the seal affixed on the bottle containing the sample. He has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court. The copy of the forwarding note was not produced and marked. There is nothing to show that the specimen of the seal was forwarded to the chemical examiner for comparison. ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** 13. 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. 14. 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. 15. In **Ramachandran 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 ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 16. The sample was forwarded to the laboratory as per the letter dated 02.11.2003. The sample reached the laboratory on 03.11.2003. There is no evidence to show the date on which the sample was forwarded to the laboratory. Ext.P6 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per the letter dated 02.08.2003. The sample reached the laboratory on 03.11.2003 as is seen from Ext.P6. The sample analysed in the laboratory is a sample forwarded as per letter dated 02.08.2003 which is evident from Ext.P6. The alleged seizure was on 09.08.2003. The necessary inference is that a sample forwarded even prior to the detection was subjected to analysis in the Chemical Examiner’s Laboratory. The prosecution has not offered any explanation as to this discrepancy. The Excise ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Official who delivered the sample in the laboratory was not examined by the prosecution. Therefore, there is failure on the part of the prosecution in establishing that the contraband seized from the place of occurrence was analysed in the Chemical Examiner’s Laboratory. 17. As the prosecution has failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 18. 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. The appellant/accused is therefore found not guilty of the offence punishable under Section 55(a) of the Abkari Act. In the result, - (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed ``` CRL.A NO. 2471 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** against the 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