# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 CRL.A NO. 1552 OF 2007**
**AGAINST THE ORDER/JUDGMENT IN SC 346/2005 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD APPELLANT/ACCUSED:**
THAMY @ APPUNNI, S/O. AYYAPPAN, EDAKKEDATHU PALLIYIL VEEDU, KUDALLUR DESOM,, ANAKKARA VILLAGE, OTTAPALAM.
BY ADVS. P.K.MOHANAN(PALAKKAD) VINOD RAVINDRANATH
## **RESPONDENT/COMPLAINANT:**
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
ADV. SUDHEER GOPALAKRISHANAN PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
The appellant is the accused in S.C No.346/2005 on the file of the Additional Sessions Judge, Fast Track Court-III, Palakkad. The aforesaid case arises from Crime No.30/1998 from Excise Range, Thrithala.
2. The prosecution case is that, on 08.10.1998 at 1.30.p.m, the accused was found in possession of about 3 liters of arrack in a 5 litre can in a public place in front of the house of one Parappuram Kunju in Anakkara Village, Koodallur. The offence was detected by PW1-Excise Inspector, Excise Range Office, Trithala. The appellant was arrested, and the articles were seized from the spot. Upon completion of the investigation, a final report was submitted before the Judicial Magistrate of First Class Pattambi, where it was taken into the file as C.P.No.51/04. Later the same was committed to the Sessions Court, Palakkad and the same was made over to the the Additional Sessions Judge, Fast Track Court-III, Palakkad,
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where it was tried as S.C No.346/2005. In support of the prosecution, PW1 to PW4 were examined, Exts.P1 to P8 were marked, and material object MO1 was identified. After completion of prosecution evidence, the appellant was examined under Section 313 Cr.P.C and the incriminating materials brought out during the course of the trial were put to him. The appellant denied and pleaded innocence. As defence evidence Ext.D1 was marked.
3. After appreciating the materials available on record, the learned Sessions Judge concluded that the appellant is guilty of the offences punishable under Section 55(a) and Section 8(2) of the Abkari Act. Accordingly, he was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of rupees One lakh, with a default sentence to undergo simple imprisonment for a further period of six months. This appeal is filed challenging the aforesaid findings and conviction.
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4. Heard Sri.P.K.Mohanan (Palakad), learned counsel appearing for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State.
5. Learned counsel for the appellant contends that there is a considerable delay of more than five years in filing the final report, and no explanation is forthcoming on the part of the investigating officer regarding the same. The aforesaid delay is a violation of the Section 50 of the Abkari Act, and it is sufficient to arrive at the finding that the appellant is not guilty. Apart from the above, it was also pointed out that the prosecution failed to establish that the sample drawn from the article seized from the possession of the appellant was the same sample which was submitted for chemical analysis. To substantiate the same, it was pointed out that Ext.P2 seizure mahazar does not contain the impression of the specimen seal and also the description of the same, which was affixed on the samples at the time of drawing the sample. Another contention is that there is no mention of examining the seals affixed on the bottles in the chemical analysis report. It is mentioned in the said report that
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what was submitted from examination was the contents of a sealed bottle contained in a sealed packet. The only mention in the aforesaid report is about the comparison of the seal affixed on the packets with the sample seal provided. It is pointed out that in the absence of comparison of the seal affixed on the bottle with the sample seal provided thereon, it cannot be concluded that the sample subjected to chemical analysis was the same sample drawn from the possession of the appellant. By placing reliance upon the above materials, interference in findings of conviction was sought for.
6. On the other hand, learned Public Prosecutor would oppose the aforesaid contentions. He would submit that the materials placed on record in the form of evidence of official witnesses coupled with the documents such as seizure mahazar, arrest memo etc., are sufficient to hold the appellant guilty of the offences. In such circumstances, it is pointed out that no interference is warranted, and dismissal of the appeal was sought.
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7. The first contention put forward by the learned counsel for the appellant is regarding the delay in completing the investigation and submitting the final report. The incident, in this case, occurred on 08.10.1998. However, the final report was prepared only on 12.07.2004, and the same was submitted on 19.07.2004. It is pointed out that there was a delay of more than five years. According to the learned counsel for the appellant, Section 50 of the Abkari Act mandates completion of investigation and submission of the final report without any delay. In this case, the aforesaid legal requirements have not been complied with, and therefore, he is entitled for acquittal on that ground. However, in **Santhosh T.A. and another v. State of Kerala [2017(5) KHC 107]** it was held by this Court that, in the absence of any prejudice being shown to the accused, the delay by itself cannot be a reason for acquittal. To establish the aforesaid prejudice, the accused has to cross examine the investigation officer by specifically putting questions to that effect. In this case, PW3 is the investigating officer who submitted the final report. A perusal of his deposition would indicate that no
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Crl.Appeal No.1552 of 2007 questions were put to him about the delay in the investigation, and no prejudice is highlighted by the appellant. In the absence of any such aspects, the contention put forward by the learned counsel for the appellant cannot be accepted. Therefore, I am not inclined to accept the said contention.
8. Next aspect relates to the lack of comparison of the seal affixed on the bottle by the chemical analysis. It is true that on going through Ext.P8 chemical examination report, it is seen that the liquid which was subjected for chemical analysis was contained in a sealed bottle which itself was in a sealed packet. It is mentioned in Ext.P8 report that the seal affixed on the packet was found tallying with the sample seal provided. According to the learned counsel, the aforesaid report does not indicate the comparison of the seal affixed on the bottle with that of the sample seal provided and in the absence of the same, a benefit of doubt arises as to whether the liquid subjected to chemical analysis was the same liquid which was drawn from the possession of the appellant herein. However, on perusal of Ext.P5, forwarding note prepared by PW1,
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Detecting Officer, it can be seen that it contains the impression of a specimen seal. The covering letter by which the same was forwarded for chemical analysis by the learned Magistrate, which also forms part of the Ext.P5, contains the signature of the court. In such circumstances, it is evident that the sample was forwarded to chemical analysis in a tamper-proof condition. Merely, because of the reason that the seal on the bottle is not seen to have been compared by the chemical analyst as per the report, that by itself cannot be a reason to grant the benefit of the doubt in favour of the appellant. This is particularly because the aforesaid report would indicate that the sealed bottle was inside a packet sealed by the authority concerned. Since all the acts of forwarding the same were done along with seals and the documents containing specimen seal thereof, I do not find any discrepancy as claimed by the learned counsel for the appellant herein. Hence, I do not find any reason to suspect the veracity thereof.
9. However, I find some force concerning the contention put forward by the learned counsel with regard to the lack of
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seal in Ext.P2 Mahazar and also the absence of description of the seal thereon. In **Moohedath Sivadasan vs. State of Kerala [2020 ICO 4301] = 2021(2) KLJ 80,** it was observed that lack of seal or description thereof in seizure mahazar is a crucial lacuna in the prosecution case. To establish the offence, the prosecution has to clearly establish that the sample which was taken from the possession from the accused was subjected to chemical analysis. For that purpose, all the sequence of events to form the complete chain of the transaction, right from the seizure of the article up to the chemical analysis, have to be proved. The lack of sample seal on the Ext.P2 Mahazar and the description thereof is a crucial missing link in establishing the aforesaid sequence of the evidence. In such circumstances, the appellant/accused is entitled to the benefit of doubt.
10. In such circumstances, the only conclusion possible is that the prosecution failed to prove the offence alleged against the appellant. Accordingly, I find merit in the appeal.
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Crl.Appeal No.1552 of 2007 In the result, this appeal is allowed; the judgment dated
14.08.2007 in S.C. No.346/2005 on the file of the Session Court Fast Track -III, Palakkad is hereby set aside. The appellant is found not guilty and acquitted from all the charges.
Sd/-
**ZIYAD RAHMAN A.A JUDGE**
rpk
