Thomas @ Thankachan S/o Thomas vs State of Kerala; Muraleedharan S/o Padmanabhan vs State of Kerala

Crl.A Nos.1286/2006 & 1413/2006 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943 CRL.A NO. 1286 OF 2006** **AGAINST THE JUDGMENT IN SC 405/2000 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM APPELLANT/ACCUSED:** **THOMAS @ THANKACHAN S/O.THOMAS, THOMAS VILLA, VATTAKUZHIKKAL, VILAVOORKONAM CHERRI, KALLUVATHUKKAL VILLAGE.** BY ADV SRI.C.RAJENDRAN ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE S.I. OF POLICE, PARIPPALLY POLICE STATION (CRIME NO.222/1998), THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** BY SR.PUBLIC PROSECUTOR SRI.M.S BREEZ THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, ALONG WITH CRL.A No.1413/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.1286/2006 & 1413/2006 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943 CRL.A NO. 1413 OF 2006** **AGAINST THE JUDGMENT IN SC 405/2000 OF ADDITIONAL DISTRICT** **AND SESSIONS COURT (ADHOC)-II, KOLLAM APPELLANT/ACCUSED:** **MURALEEDHARAN S/O.PADMANABHAN,SMITHA BHAVAN, PANATE PADINJATTATHIL,, MEENNEDIKKALA PADINJARAMURI, KADAMPANADU VILLAGE.** BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** - **2 SUB INSPECTOR OF POLICE PARIPPALLY POLICE STATION, PARIPPALLY, KOLLAM DISTRICT.** BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, ALONG WITH CRL.A NO. 1286/2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A Nos.1286/2006 & 1413/2006 3 **K.BABU, J. ========================= Crl.A Nos.1286/2006 & 1413/2006 ==========================** Dated this the 5[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 23.6.2006, passed by the learned Additional District and Sessions Judge (Adhoc), Kollam, in S.C.No.405/2000, the two accused have preferred these appeals. 2. The appellant in Crl.A No.1286/2006 is accused No.1. The other accused is the appellant in Crl.A No.1413/2006. The trial court convicted the accused for the offences punishable under Sections 8(2) and 56(b) of the Abkari Act. 3. The prosecution case is that on 3.10.1998, on getting reliable information that illicit arrack was stored at Vattakuzhikkal toddy shop, the police party led by PW4, the Sub Inspector of Parippally Police Station, searched the premises of the toddy shop and detected the contraband substance in two plastic containers concealed among the firewood kept in a shed on the northern side of the toddy shop. PW4 seized 35 litres of Crl.A Nos.1286/2006 & 1413/2006 4 arrack from one can and 25 litres of arrack from the other. 4. After completion of the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 56(b) of the Abkari Act before the Munsiff - Magistrate Court, Paravoor. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court, Kollam. On appearance of the accused charges were framed against them for the offences punishable under Sections 8(2) and 56(b) of the Abkari Act. Both the accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences. 5. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P6 and MO1 series to prove the case against the accused. 6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. They 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 they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the Crl.A Nos.1286/2006 & 1413/2006 5 accused are guilty of offences under Sections 8(2) and 56(b) of the Abkari Act and they were convicted thereunder. They were sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.5,00,000/- under Section 8(2) of the Abkari Act. They were also sentenced to undergo imprisonment for a term of six months and to pay a fine of Rs.2,000/- under Section 56(b) of the Abkari Act. 7. Heard Sri.C.Rajendran and Sri.Alexander George, the learned counsel appearing for the appellants/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondents. 8. The learned counsel for the appellants canvassed the following grounds to challenge the impugned judgment: a) There is inordinate delay in producing the properties before the court. b) The prosecution failed to establish that the articles said to have been seized from the place of occurrence ultimately reached the hands of the Public Analyst at the Chemical Examiner's lab. c) There is no satisfactory explanation for the delay in analysing the sample at the Chemical Examiner's lab. Crl.A Nos.1286/2006 & 1413/2006 6 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 11. PW4, the Sub Inspector of Police, Paripally Police Station, detected the offence. He gave evidence that on 3.10.1998 he conducted search on the premises of the toddy shop run by accused No.2 and seized the illicit arrack stored in two containers concealed among the firewood stacked in a shed near the toddy shop. PW4 stated that the accused No.1 was an employee of the shop. PW4 gave evidence that he seized the contraband substance as mentioned in Ext.P1 seizure mahazar. He further stated that the sample of the contraband substance was taken in a bottle which was sealed, labelled and attested. PW4 registered Ext.P2 FIR on the basis of Ext.P1 seizure mahazar and accused No.1 was arrested and produced before the court. The articles seized from the place of occurrence were Crl.A Nos.1286/2006 & 1413/2006 7 also produced before the court as per Ext.P3 property list on 22.10.1998, PW4 added. PW4 completed investigation and submitted final report before the committal court. 12. PW1, an independent witness, did not support the prosecution case. PW2 and PW3, the police constables, who had accompanied PW4, supported the version of PW4. PW5, the Assistant Commissioner of Excise, was examined to establish that the accused No.2 was the licensee of the toddy shop. 13. The learned counsel for the appellants/accused submitted that though Ext.P3 property list was prepared by PW4 on 3.10.1998, the properties allegedly seized from the place of occurrence were produced before the court only on 22.10.1998 and that the inordinate delay in producing those properties before the court has not been satisfactorily explained. PW4, the detecting officer, stated that he had produced the articles on 4.10.1998 before the court but those were returned to him. There is absolutely no evidence to show that any date prior to 22.10.1998 the properties were produced before the court. Ext.P3, property list, makes it clear that the properties were produced before the court only on 22.10.1998. The further explanation of PW4 is that the properties were kept in his safe custody which is no way a satisfactory explanation for the delay Crl.A Nos.1286/2006 & 1413/2006 8 in production of the properties. 14. On the question of delay in production of the properties, the Division Bench of this Court in **Ravi v. State of** ## **Kerala & another (2011(3) KHC 121)** held thus: “We therefore, answer the reference as follows: 8(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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.” (Emphasis supplied) 15. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is no satisfactory explanation for the delay in production of the property. The unexplained delay in the production of properties would lead us to the conclusion that tampering with the samples could not be ruled out. 16. The learned counsel for the appellant further contended that the prosecution failed to establish that the Crl.A Nos.1286/2006 & 1413/2006 9 contraband substance, allegedly recovered from the place of occurrence, ultimately reached the hands of the Public Analyst for the following reasons: a) The detecting officer (PW4) and the other official witnesses, who had accompanied him (PW2 and PW3), have not given evidence as to the nature and description of the seal affixed on the sample. b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used. c) The copy of the forwarding note, which usually contains the specimen seal, has not been produced before the court. 17. I have gone through the depositions of the witnesses and Ext.P1 mahazar. PW4, the detecting officer, and the other witnesses who had accompanied him have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure Crl.A Nos.1286/2006 & 1413/2006 10 mahazar, does not contain the specimen of the seal stated to have been affixed in the sample. 18. In **Bhaskaran v. State of Kerala and another (2020 KHC 5296)** , while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus: “21. 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 (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis Crl.A Nos.1286/2006 & 1413/2006 11 supplied) ## 19. In **Krishnadas v. State of Kerala (2019 KHC 191)** this Court held thus: “7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied) 20. The learned counsel further contended that there is nothing to show that any specimen seal was provided to the chemical examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the sample bottle. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. The copy of the Crl.A Nos.1286/2006 & 1413/2006 12 forwarding note, which contains the specimen of the seal used and the name of the official with whom the sample bottle was entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in this case. In **Ramachandran v. State of Kerala (2021(1) KLT 793)** while dealing with a case in which forwarding note was not produced and marked this Court held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamperproof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 21. In **Rajamma v. State of Kerala (2014(1) KLT 506)** , this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with Crl.A Nos.1286/2006 & 1413/2006 13 sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. 22. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P4 chemical analysis report. 23. Ext.P4, certificate of chemical analysis, shows that the sample reached the laboratory on 29.10.1998. But the same was analysed only on 1.2.1999. The learned counsel for the appellants contended that the delay, in the analysis of the sample which has not been explained properly, is also fatal to the prosecution. This Court in **Krishnadas v. State** ## **of Kerala (2019 KHC 191)** held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in Crl.A Nos.1286/2006 & 1413/2006 14 September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 24. In the instant case, the delay of more than one year in analysing the sample remains unexplained. 25. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related. 26. It is 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 seized from the possession of the accused. 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 are Crl.A Nos.1286/2006 & 1413/2006 15 definitely entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 27. The upshot of the above discussion is that the conviction entered by the court overlooking these vital aspects of the matter cannot therefore be sustained. The appellants/accused are therefore not guilty of the offences punishable under Sections 56(b) and 8(2) of the Abkari Act and are acquitted of the charges. They are set at liberty. These Crl.Appeals are allowed as above. Sd/- **K. BABU JUDGE** ab