Thankachan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944 CRL.A NO. 1520 OF 2007 AGAINST THE ORDER/JUDGMENTSC 304/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA APPELLANT/ACCUSED:** THANKACHAN AGED 44 YEARS S/O. THOMAS, PADICHIRA, S.BATHERY, WAYANAD. BY ADV M.T.BALAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR,SULTAN BATHERY, THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Criminal Appeal No.1520 of 2007 **K.BABU, J** . -------------------------------------- Criminal Appeal No.1520 of 2007 --------------------------------------Dated this the 26[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 20.07.2007, passed by the Additional Sessions Court (Adhoc)-II, Kalpetta in Sessions Case No.304/2005, the accused has preferred this appeal. The appellant/accused was convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.1.2004 at 11.45 p.m the accused was found in possession of 35 packets of Karnataka made arrack each containing 100 ml, at Edamala on the Padichira–Mullankolly road in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report 3 Criminal Appeal No.1520 of 2007 was submitted against the accused for the offences punishable under Sections 55(a) and 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 him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts P1 to P7 and MOs 1 and 2. 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 4 Criminal Appeal No.1520 of 2007 he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. 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.M.T.Balan, the learned counsel 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 contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 24.01.2004. Ext.P5 property list shows that the material objects were produced before the Court only on 27.01.2004. The prosecution has not offered any satisfactory explanation for the delay in producing the 5 Criminal Appeal No.1520 of 2007 properties before the Court. 8. 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. 9. There is no satisfactory explanation for the delay in the production of properties before the Court. 6 Criminal Appeal No.1520 of 2007 The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 10. It is further contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by the officials concerned. 11. The Detecting Officer, who has drawn the sample, has not narrated the nature of the seal stated to have been affixed on the sample, in the mahazar. 12. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable 7 Criminal Appeal No.1520 of 2007 the Court to satisfy the genuineness of the sample produced in the Court {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Achuthan v. State of Kerala**_ [2016(1) KLD 391], _**Krishnadas v. State of Kerala**_ (2019 KHC 191)}. 13. The prosecution has not given evidence as to the date on which the bottle containing the sample was forwarded to the laboratory. Ext.P7 Certificate of Chemical Analysis shows that one sealed 375 ml bottle containing 200 ml of colourless clear liquid alleged to be arrack was forwarded to the laboratory as per letter dated 27.01.2004 of the Judicial Fisrt Class Magistrate Court-II, Sulthanbatheri. Ext. P7 further shows that the sample reached the laboratory only on 10.02.2004. In the absence of any contra evidence the necessary inference is that on 27.01.2004 the bottle containing the sample was received by the excise guard concerned from the Court. 8 Criminal Appeal No.1520 of 2007 There is no satisfactory explanation for the delay in bringing the sample to the laboratory after the same was obtained from the Court. The excise guard who received the sample from the Court, Sri. Rajan K.T, was not examined by the prosecution as witness. 14. While dealing with a similar factual situation, this Court in _**Viswanadhan v. State of Kerala**_ [2016 (3) KHC 38] held thus: “ _Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ 9 Criminal Appeal No.1520 of 2007 _15._ In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 16. In the absence of any convincing evidence to show that the contraband allegedly seized from the place of occurance eventually reached the Chemical Examiner's laboratory, Ext. P7, Certificate of Chemical Analysis has no evidentiary value. 17. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be corelated. 18. It is well settled that the prosecution in a 10 Criminal Appeal No.1520 of 2007 case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so, when the sample might have changed several hands before it reached the hands of the Chemical Examiner. {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Valsala v. State of Kerala**_ (1993 KHC 798), **Sathi v. State of Kerala** [2007 (1) KHC 778]}. 19. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. The conviction and sentence recorded by the 11 Criminal Appeal No.1520 of 2007 trial Court cannot be sustained. In the result, the appellant/accused is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk