Surendran v. State of Kerala; Mohanan v. State of Kerala (Criminal Appeal Nos. 943/2007 & 891/2007)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 943 OF 2007`** ``` AGAINST THE JUDGMENT IN SC 1234/2005 OF ADDITIONAL ``` ``` SESSIONS COURT.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA APPELLANT/S: ``` ``` SURENDRAN, S/O. CHELLAN, PURAMPOKKUVEEDU, PEREKONAM, OLIPURAM ROADERIKATHU,, ARUVIKUZHY VAZHICHAL DESOM,OTTASEKHARAMANGALAM. BY ADV M.R.SARIN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SR PUBLIC PROSECUTOR SMT S REKHA ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, ALONG WITH CRL.A.891/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos.943/2007 & 891/2007] ``` 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 891 OF 2007`** ``` AGAINST THE JUDGMENT IN SC 1234/2005 OF ADDITIONAL SESSIONS COURT.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 10/1999 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,KATTAKADA`** ## **`APPELLANT/S:`** ``` MOHANAN S/O ELIYASAR, ANUPAMA, AARYNADU, THUMBAKONAM COLONY, PAZHAYATHERUVU,, ARYANADU VILLAGE, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SRI.GEO PAUL SRI.RAZEENA P.T.LAKSHADWEEP SRI.C.R.PRAMOD SRI.SANU MATHEW SRI.M.B.SANDEEP ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA SUB INSPECTOR OF POLICE NEYYAR DAM,, THIRUVANANTHAPURAM BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, ALONG WITH CRL.A.943/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos.943/2007 & 891/2007] ``` 3 ## **[CRL.A Nos.943/2007 & 891/2007]** ## **JUDGMENT** As these appeals arise from the judgment dated 23.05.2007 in S.C.No.1234 of 2005, I am disposing of both the appeals by way of a common judgment. 2. The appellant in Crl.A.No.943 of 2007 is accused No.1 and the appellant in Crl.A.No.891 of 2007 is accused No.3. The prosecution case is briefly narrated below: 3. The Sub Inspector of Police, Neyyardam Police Station (PW4), on 26.09.1998, received information over phone that arrack was being transported from Kuttichal to Vazhichal in an autorickshaw bearing No.KL01/G-4037. PW4 proceeded to the place of occurrence and intercepted the vehicle involved. There were four persons in the vehicle. PW4 found 5 black jerrycans of 20 litre capacity and 2 cans of 10 litre capacity containing arrack in the autorickshaw. All the four persons were ``` CRL.A Nos.943/2007 & 891/2007] ``` 4 arrested. PW4 seized the arrack stored in the cans and registered FIR No. 141/98 against five persons. Accused Nos.1, 3 and 4 faced trial. Accused No.2 absconded. Accused Nos.1, 3 and 4 were convicted under Section 58 of the Abkari Act. They were sentenced to under to rigorous imprisonment for a period of four years each and pay a fine of Rs.1 lakh each. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 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 offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. 5. The prosecution examined PWs.1 to 5 and proved Exts. P1 to P12 and MOs1 and 2. ``` CRL.A Nos.943/2007 & 891/2007] ``` 5 6. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was 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 DWs 1 to 3 were examined. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted them thereunder. 7. Heard Sri.M.R.Sarin and Geo Paul, the learned counsel appearing for the appellants/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- ``` CRL.A Nos.943/2007 & 891/2007] ``` 6 1. The prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 2. The act of the Property Clerk of the Court drawing sample from the bulk quantity of the arrack produced before the Court has no sanction of law. 9. The learned counsel for the appellants relied on the following circumstances to contend that the contraband seized at the place of occurrence was not subjected to analysis in the Chemical Examiner's Laboratory. - (a) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the cans containing the arrack seized from the autorickshaw. - (b) No specimen of the seal used by the Detecting Officer was produced before the ``` CRL.A Nos.943/2007 & 891/2007] ``` 7 Court. (c) The delay in the production of the properties before the Court has not been satisfactorily explained by the prosecution. 10. The alleged seizure was effected on 26.09.1998. PW4, the Detecting Officer had prepared Ext.P1 seizure mahazar at the scene of occurrence. Ext.P1 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. No specimen of the seal was produced before the Court at the time of production of the properties including the sample before the Court. 11. 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 Nos.943/2007 & 891/2007] ``` 8 Therefore, the prosecution failed to establish the genuineness of the arrack produced before the Court. 12. Another aspect that requires consideration is the inordinate delay in the production of the arrack seized before the Court. Though the seizure was effected on 26.09.1998, the properties were produced before the Court only on 05.10.1998, which is evident from Ext.P5 property list and the oral evidence of PW5, the Property Clerk. PW4, the Detecting Officer made an attempt to explain the delay in the production of the properties while giving evidence stating that though he had produced the properties before the Court immediately after the seizure, the properties were not received in the Court. There is nothing on record to show that the contraband substance allegedly seized from the place of occurrence was produced before the Court on any day prior to 05.10.1998. So the explanation of PW4 regarding the delay in the production of the properties is not satisfactory. ``` CRL.A Nos.943/2007 & 891/2007] ``` 9 13. 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 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. 14. 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. ``` CRL.A Nos.943/2007 & 891/2007] ``` 10 15. The learned counsel for the appellants further challenged the act of taking sample from the bulk quantity of arrack produced before the Court by the Property Clerk as per the instructions of the jurisdictional Magistrate concerned. PW5, the Property Clerk gave evidence that as per the instructions of the Magistrate, he had drawn sample in seven bottles and forwarded the same to the laboratory. No contemporaneous document was prepared to establish that the learned Magistrate had directed the Property Clerk to draw the sample. The legality of drawing the sample by the officer of the Court as per the directions of the Magistrate concerned was considered by this Court in **Baburaj v. State of Kerala,** 2021 (6) KLT 416. In **Baburaj** , 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 officer, after ``` CRL.A Nos.943/2007 & 891/2007] ``` 11 investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer 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 officer. ” 16. In **Baburaj** , this Court further held that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, the result of the chemical analysis based on the sample so drawn has ``` CRL.A Nos.943/2007 & 891/2007] ``` 12 no evidentiary value. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 17. In the instant case, as the prosecution has not established that the contraband seized at the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The resultant conclusion is that the prosecution failed to establish the link connecting the appellants/accused with the contraband seized. 18. 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 therefore, found not guilty of the offence punishable under Section 58 of the Abkari Act. In the result, ## (i) the Appeals are allowed ; (ii) The judgment of conviction and sentence passed 13 ``` CRL.A Nos.943/2007 & 891/2007] ``` against the accused is set aside ; (iii) The accused are acquitted of the offence alleged ; (iv) They are set at liberty . Sd/- **K. BABU, JUDGE** kkj