Thankappan Thittamel Muri v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` **`WEDNESDAY, THE 21[ST] DAY OF` JUNE** **`2023 / 31ST JYAISHTA,`** ## **`1945`** ## **`CRL.A NO. 483 OF 2007`** ``` AGAINST THE ORDER/JUDGMENTSC 344/2000 OF ADDITIONAL ``` ## **`DISTRICT COURT-I,MAVELIKKARA`** ``` CP 23/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ``` ## **`CHENGANNUR`** ## **`APPELLANT/S:`** ``` THANKAPPAN THITTAMEL MURI, CHENGANNUR VILLAGE,, CHENGANNUR TALUK. ``` ``` BY ADV SRI.JOHN BRITTO ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SANGEETHA RAJ PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 483 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 09.02.2007, passed by the Additional Sessions Court-I, Mavelikara, in Sessions Case No.344 of 2000, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 06.06.1998 at 11.30 am, the accused was found in possession of two litres of arrack in his house bearing No.10/428 at Chengannur, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2), 55(a) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case ``` CRL.A NO. 483 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 8(2), 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs. 1 to 5 and proved Exts. P1 to P8, MO1 series, MOs 2 and 3. 5. After the closure of the evidence on behalf of the prosecution, 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 he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of the defence, DW1 was examined. The trial Court, after hearing the arguments addressed on both sides, ``` CRL.A NO. 483 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. C.A. Rajeev, the learned counsel appearing for the appellant/accused and Sri N.R. Sangeetharaj, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (i) Ext. P1 seizure mahazar does not contain the nature and description of the ``` CRL.A NO. 483 OF 2007 ``` ..5.. seal stated to have been affixed on the bottle containing the sample. - (ii) The delay in the production of properties including the sample has not been satisfactorily explained. - (iii) The various officials who handled the sample during its transit from the Court to the laboratory were not examined. 9. The alleged seizure and arrest were effected on 06.06.1998. Ext.P7, the property list, would show that the properties including the sample were produced before the Court only on 11.06.1998. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: ``` CRL.A NO. 483 OF 2007 ``` ..6.. 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. 11. 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. 12. Ext. P1 Mahazar does not contain the nature of the seal stated to have been affixed on the bottle ``` CRL.A NO. 483 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** containing the sample. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of the properties including the sample. 13. 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. 14. The sample remained in the custody of the property clerk of the Court till 30.06.1998. It is seen forwarded to the laboratory on 30.06.1998 itself. But, the sample was delivered in the laboratory only on 01.07.1998, through an Excise Guard by name Suresh. None of those officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. ``` CRL.A NO. 483 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 15. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 16. The prosecution has not succeeded in establishing the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory. 17. 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 appellant/accused is therefore, found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, ## (i) The Appeal is allowed ; ``` CRL.A NO. 483 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** (ii) The judgment of conviction and sentence passed against the appellant/accused is set aside ; (iii) The accused is acquitted of the offence alleged ; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj