Sunil s/o Yesudasan and Yesudasan s/o George v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 CRL.A NO. 1506 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT SC 951/2006 OF ADDITIONAL SESSIONS COURT (ADHOC) III, KOLLAM CP 27/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`KOLLAM`** ## **`APPELLANTs/S:`** ``` 1SUNIL S/O YESUDASAN JOY VILASOM VEEDU, PERAYAMCHERRY, MULAVANA VILLAGE, KOLLAM DISTRICT. 2YESUDASAN S/O GEORGE JOY VILASOM VEEDU, PERAYAMCHERRY,MULAVANA VILLAGE, KOLLAM DISTRICT. BY ADV SRI.B.MOHANLAL ``` ## **`RESPONDENT:`** ``` STATE OF KERALA EXCISE INSPECTOR, KOLLAM EXCISE RANGE, KOLLAM DISTRICT THOUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` G SUDHEER,PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl. A.No.1506 of 2007 ..2.. ## **K. BABU, J** **------------------------------------------------Crl Appeal No.1506 of 2007 ------------------------------------------------Dated this the 2[nd] day of February, 2024** Aggrieved by the judgment dated 31.07.2007 passed by the Additional Sessions Court, Fast Track (Ad hoc-III), Kollam in Sessions Case No.951 of 2006, the accused have preferred this appeal. The appellants were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 01.12.2003 at 06.00 a.m., the accused were found to have transported 10 litres of arrack in a 10 litre capacity can in an autorickshaw along the road leading from Parayam Junction to Padapparkkara in Mulavana Village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence Crl. A.No.1506 of 2007 **==> picture [20 x 9] intentionally omitted <==** punishable under Section 8(2) 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 them for the offences punishable under Section 8(2) 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 P8 and MO1. 5. After the closure of evidence on behalf of the prosecution, 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. The trial Court, after hearing the arguments addressed on Crl. A.No.1506 of 2007 **==> picture [20 x 9] intentionally omitted <==** both sides, found the accused guilty of the offences under Section 8(2) of the Abkari Act and convicted them thereunder. 6. Heard Sri.B. Mohan Lal, the learned counsel appearing for the appellants/accused and Sri. G.Sudheer., the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants 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 eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containting the sample. Crl. A.No.1506 of 2007 **==> picture [20 x 9] intentionally omitted <==** (ii)The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. 9. The alleged seizure was effected on 01.12.2003. Ext.P5 property list shows that the properties including the sample were produced before the Court only on 03.12.2003. The prosecution has not offered any satisfactory explanation to the delay in the production of properties including the sample before the Court. 10. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: _“8. We, therefore, answer the reference as follows:_ 1. _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_ Crl. A.No.1506 of 2007 **==> picture [20 x 9] intentionally omitted <==** ## _production of the property.”_ _(Emphasis supplied)_ 11. _**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. 12. 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. 13. Ext.P1 seizure mahazar does not contain the nature and description of the seal used by the Detecting Officer. He has not given evidence as to the nature of the seal used. 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 Crl. A.No.1506 of 2007 **==> picture [20 x 9] intentionally omitted <==** 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. 15. The sample remained in the custody of the property clerk and an Excise Guard by name K.K. Susanthi Raj who delivered the sample in the laboratory. The prosecution has not examined the above officials. Non-examination of these two officials who handled the sample during its transit to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in _**State of Rajastan v. Daulat Ram**_ [AIR 1980 SC 1314). 16. In the instant case the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized Crl. A.No.1506 of 2007 **==> picture [20 x 9] intentionally omitted <==** from the place of occurrence. 15. 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/saccused are therefore found not guilty of the offences punishable under Section 8(2) 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