Suresh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943** **CRL.A NO. 1173 OF 2007** **AGAINST THE JUDGMENT IN SC 818/2001 OF SPECIAL COURT FOR ABKARI** **ACT CASES, KOTTARAKKARA, KOLLAM** ## **APPELLANT/2ND ACCUSED:** **SURESH, S/O.PUSHKARAN, PONGUMUKAL VEEDU, THALACHIRA MURI, CHAKKUVARACKAL VILLAGE, KOTTARAKARA TALUK.** BY ADV SRI.ALEXANDER GEORGE ## **RESPONDENT/COMPLAINANT:** 1 **STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** 2 **THE ASST. SUB INSPECTOR OF POLICE KOTTARAKARA POLICE STATION, KOTTARAKARA.** ## **SANAL P RAJ-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 1173 OF 2007 2 ## **JUDGMENT** 26[th] day of October, 2021. This is an appeal filed by the 2[nd] accused under Section 374(2) of the Code of Criminal Procedure (for short 'Cr.P.C.') against the judgment of conviction and sentence passed by the Additional Sessions Court, (Abkari Cases), Kottarakkara in S.C. No.818/2001 dated 30.5.2007. 2. The accused faced trial for an offence punishable under Sections 55(a) and (i) of the Abkari Act. 3. The prosecution case in short is that on 28.9.1998 at 5 pm., the accused in furtherance of their common intention were in possession for sale of 30 litres of arrack in a 36 litre can concealed in the pit of the valve of the KIP pipe line on the eastern side of the property of one Abraham at Thalachira in contravention of the Abkari Act and the Rules. 4. PW4, the Assistant Sub Inspector of Police, Kottarakka detected the offence. He also conducted investigation. PW5 verified the records and filed final report. The 2[nd] accused/appellant was arrested at the spot. The 1[st] accused ran away. The can carried by the 2[nd] accused was seized. On inspection, it was found that it CRL.A NO. 1173 OF 2007 3 contained illicit arrack. The sample was drawn from the illicit arrack seized in a bottle. It was properly sealed and packed. The mahazar was prepared and it was marked as Ext.P1. PW4 went to the Police Station along with the accused and seized contraband article and registered Ext.P3 FIR. The 1[st] accused arrested later on 13.10.1998. The sample was sent for chemical analysis and the chemical analysis report received was marked as Ext.P5. It shows that the sample contained 31.63% by volume of Ethyl alcohol. After compleing the investigation, PW5 filed final report before the Magistrate. The learned Magistrate, after complying with the statutory formalities, committed the case for trial to the Court of Sessions. 5. On receipt of summons both the accused appeared at the court below. After hearing both sides, the charge under Sections 55(a) and (i) of the Abkari Act was framed against the accused. The charge was read over and explained to the accused who pleaded not guilty. 6. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P6. MO1 and MO2 were identified. The accused were questioned under Section 313 Cr.P.C. On the side of the defence DW1 was examined. CRL.A NO. 1173 OF 2007 4 7. Considering the evidence on record, the court below found the 2[nd] accused/appellant guilty for the offence punishable under Sections 55(a) of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-, in default to suffer rigorous imprisonment for a period of three months. The 1[st] accused was found not guilty and he was acquitted. Aggrieved by the conviction and sentence the 2[nd] accused this appeal. 8. I have heard Sri.Alexander George, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor. 9. The learned counsel for the appellant assailed the finding of guilt passed against the appellant as illegal and unsustainable contending that the detection as well as the investigation were done by the Assistant Sub Inspector, who is not a competent authority. The counsel further submitted that there is undue delay in producing the seized article at the court, the benefit of which should, definitely, go to the accused. The counsel also submitted that the forwarding note for sending the sample for chemical analysis was not produced and marked in evidence. The counsel further argued that the mahazar does not contain the specimen seal. CRL.A NO. 1173 OF 2007 5 There is no acceptable legal evidence to prove the guilt of the accused other than the interested testimony of the official witnesses, argued the counsel. 10. The learned Public Prosecutor, on the other hand, supported the findings and verdict of the court below and argued that necessary ingredients of Sections 55(a) and (i) of the Abkari Act had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 11. The first and foremost argument advanced by the learned counsel for the appellant is the lack of competence of the detecting officer to detect the crime and to investigate the offence. I find some force in the said submission. PW4 is the detecting officer. He also conducted investigation. He is the Assistant Sub Inspector at Kottarakkara Police Station. As per SRO No.321 of 1996 the only police officers of and above in the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department apart from the Revenue Officers mentioned in the notification are alone competent to conduct the detection and investigation of the Abkari offences. In **Unni v. State of Kerala** [2009(2) KHC 661] it was held that the Assistant Sub Inspector of Police is not authorised or empowered to detect or CRL.A NO. 1173 OF 2007 6 investigate the abkari offences. In **Rajan v. State of Kerala** [2009 KHC 829] it was held that the Assistant Sub Inspector of Police being not an abkari officer authorised under the Abkari Act, is not competent to detect, investigate or lay charge in relation to Abkari offences. The court below found that eventhough PW4 is an Assistant Sub Inspector, the evidence of PWs 3 and 5 would reveal that he was the Station House Officer at that time. Absolutely no documentary evidence was produced to show that PW4 was the Station House Officer at the relevant time. In Exts.P1, P3 or in the final report nothing has been stated that PW4 was the Station House Officer. Hence I accept the submission of the learned counsel for the appellant that PW4 was not an authorised officer competent to detect and investigate the offence under the Abkari Act and as such the detection and investigation done by him was unauthorised. 12. The next point urged by the learned counsel for the appellant is regarding the delay in producing the seized article at the court. It is settled that the unexplained delay in producing the contraband article at the court is fatal to the prosecution case. A Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353] has held that even though law does not mandate CRL.A NO. 1173 OF 2007 7 production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in **Ravi v. State of Kerala** [2018 (5) KHC 354] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in **Ramankutty v. Excise Inspector** [2013 (3) KHC 308]. Relying on the Division Bench's decision in **Ravi** (supra), recently, another Single Bench of this Court in **Anilkumar v. State of Kerala** (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal. The Apex Court in **State of Uttar Pradesh v. Hansraj @ Hansu** [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. 13. Coming to the facts of the case, the detection was on 28.9.1998. The appellant was produced at the court on the next CRL.A NO. 1173 OF 2007 8 day. Still the contraband article was produced only on 9.10.1998. Thus there is delay of ten days. This has not been explained at all. PW4 deposed that even though the contraband articles were produced at the court below on 30.9.1998, those were returned back and kept in safe custody. But there is nothing on record to substantiate the same. The property list Ext.P4 shows that the contraband articles were produced only on 9.10.1998. There was absolutely no evidence to show as to how and in what condition the contraband articles were preserved at the Police Station. 14. The third point canvased by the learned counsel for the appellant is regarding the non production of the forwarding note. The learned counsel submitted that mere production of the laboratory report that the sample tested was contraband substance is not sufficient unless and until the forwarding note also is produced. This Court in **Gireesh @ Manoj v. State of Kerala** [2019 KHC 655] has held that in the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. The forwarding note is the link evidence to show that it was the same sample which was drawn CRL.A NO. 1173 OF 2007 9 from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. Hence, I am of the view that non production of the forwarding note is fatal to the prosecution. 15. The last point canvassed by the learned counsel is regarding the absence of sample seal in the seizure mahazar. This Court in **K** . **Bhaskaran v. State of Kerala** (2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 mahazar would show that it does not contain the sample seal or the description of the seal used. 16. The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the court below cannot be sustained. In the result, the criminal appeal stands allowed. The conviction and sentence passed by the court below vide impugned CRL.A NO. 1173 OF 2007 10 judgment are set aside. The appellant is found not guilty of the offences charged against him and accordingly he is acquitted. His bail bond is cancelled. ## **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** ab