Thankam v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 CRL.A NO. 2257 OF 2006 ``` ``` AGAINST THE JUDGMENT IN SC 622/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` THANKAM AGED 34 YEARS W/O.ASHOKAN, KUNNUMPARAMBU HOUSE, CHERKULAM P.O., KOTTAYI, PALAKKAD DISTRICT. BY ADVS. SRI.C.C.THOMAS (SR.) NIREESH MATHEW ``` ## **`RESPONDENT/ COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KOTTAYI POLICE, STATION, PALAKKAD DISTRICT, REPRESENTED BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2257 OF 2006 ``` ..2.. ## **K.BABU, J** . -------------------------------------Criminal Appeal No.2257 of 2006 --------------------------------------Dated this the 18[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 03-11-2006, passed by the Additional Sessions Court, Palakkad in Sessions Case No.622/2005, the accused has preferred this appeal. The appellant was convicted under Section 55(g) r/w Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 Lakh. 2. On 13.05.2003 at about 08.25 A.M., the accused was found boiling wash for the purpose of brewing illicit arrrack in her house bearing Door No.XI/C 358 of Kottayi Panchayat in violation of the provisions of the Abkari Act. 3. After completing the investigation, the final report was submitted against the accused for the offence punishable under Section 55(g) r/w Section 8(2) of the Abkari Act before the Judicial First Class Magistrate ``` CRL.A NO. 2257 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** Court - I, Palakkad. The case was committed to the Sessions Court, Palakkad from where it was made over to the Court below for trial and disposal. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(g) r/w Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P8 and MOs 1 and 2. 5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence she was called upon to enter on her defence and to adduce evidence, if any, she may have in support thereof. DW1 was examined and D1 to D3(b) were marked on the side of the defence. The Trial Court, after hearing the ``` CRL.A NO. 2257 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** arguments addressed from both sides, found that the accused is guilty of the offence under Section 55(g) r/w Section 8(2) of the Abkari Act and she was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of two years and to pay a fine of Rs.1 Lakh under Section 55(g) r/w Section 8(2) of the Abkari Act. 6. Heard Sri.C.C. Thomas, the learned Senior 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 13.05.2003. Ext.P4 property list shows that the material objects were produced before the Court only on 27.05.2003. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. ``` CRL.A NO. 2257 OF 2006 ``` ..5.. ## 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: 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.Appeal No.1196 of 2006 7 production of the property.” (Emphasis supplied).” 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. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could ``` CRL.A NO. 2257 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** 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 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.** ``` CRL.A NO. 2257 OF 2006 ``` ..7.. **State of Kerala** (2019 KHC 191)}. 13. There is absolutely no evidence to convince the court that the prosecution produced the specimen impression of the seal before the court and the same was provided to the Analyst for comparison. Therefore, no evidentiary value can be given to Ext.P8 chemical analysis report 14. 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. 15. It is well settled that, the prosecution in a 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. ``` CRL.A NO. 2257 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** 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]}. 16. 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. 17. The conviction and sentence recorded by the trial court cannot be sustained. In the result, the accused is acquitted of the charge under Sec.55(a) r/w 8(2) of the Abkari Act. He is set at liberty. The appeal is allowed as above. Sd/- ## **K. BABU, JUDGE** kkj