T.K. Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **CRL.A.No.420 OF 2005(C)** **AGAINST THE JUDGMENT IN S.C.NO.316 OF 2002 DATED 7-1-2005 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE.** ## **APPELLANT/ACCUSED:** **T.K.SURESH AGED 35 YEARS S/O.THULASIDHARAN, THARAKATHIL VILA VALIYA VEETIL (H), OLATHANI AMSOM DESOM, KOZHIKODE DISTRICT.** **BY ADV. SMT.ASHITHA.S, STATE BRIEF** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULANM.** **SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.420 OF 2005 2 ## **JUDGMENT** ## **Dated this the 1st day of October 2020** ... The appellant is the accused in S.C.No.316 of 2002 on the file of the Additional District & Sessions Court, Fast Track (Adhoc-II), Kozhikode. 2. The above case is charge sheeted by the Excise Inspector, Kozhikode alleging offence punishable under Section 8(1) of the Abkari Act. 3. The prosecution case is that, on 21.9.98 at about 5 p.m., the accused was found carrying 8 liters of illicit arrack in a 12 litre plastic kannas through the arecanut garden near the house of the Karuppankandi Chandran. 4. When this appeal came up for CRL.APPEAL NO.420 OF 2005 3 consideration, there was no representation to the appellant. Therefore, notice was issued to the appellant. The notice was returned with an endorsement that the appellant and his family members are not seen. That is not a reason to return a notice sent by this Court. Anyway, this is an appeal against conviction and therefore I appointed Advocate Smt.Ashida S. as State brief. 5. Heard Advocate Smt.Ashitha S., the State brief for the appellant and the learned Public Prosecutor. 6. To substantiate this case, the prosecution examined PW1 to PW5. Exhibits P1 to P9 are the exhibits marked on the side of the prosecution. MO1 and MO2 are the material objects. 7. After going through the evidence and documents, the trial court found that, the CRL.APPEAL NO.420 OF 2005 4 accused committed the offence under Section 55(a) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this criminal appeal is filed. 8. The learned counsel for the appellant submitted that, even if the entire prosecution case is accepted, no offence under Section 55(a) of the Abkari Act is attracted. The counsel submitted that, as per Ext.P8 Analyst report, the sample was received by the Analyst only on 21.10.1998, whereas, the same was despatched by the Judicial First Class Magistrate Court, Kunnamangalam on 22.9.1998. The counsel CRL.APPEAL NO.420 OF 2005 5 submitted that, as per Ext.P7 forwarding note, the sample was sent through the Excise Guard E.P. Sreenivasan. The counsel submitted that, as per Ext.P8 Analyst report also the Analyst received the sample through E.P.Sreenivasan. But he was not examined in this case. The counsel submitted that, the sample was in the hands of E.P.Sreenivasan for about one month. There was absolutely no explanation from the prosecution for this delay. The public prosecutor submitted that, there is ample evidence to prove the offence under Section 55(a) of the Abkari Act. 9. The point for consideration in this case is whether the offence under Section 55(a) of the Abkari Act is attracted in this case ? 10. The public prosecutor pointed out that, as per the 2[nd] page of the impugned CRL.APPEAL NO.420 OF 2005 6 judgment, it is clear that, the appellant was arrested on 21.9.1998 and he was released on bail only on 6.2.2002. The trial court imposed only rigorous imprisonment for two years. Therefore, the public prosecutor submitted that, as per the impugned judgment, it is specifically stated that, set off is allowed. In such circumstances, he submitted that, the only point to be decided is whether the fine imposed by the lower court is correct or not. Of course, the sustainability of the conviction also is to be decided in this case. As per Ext.P7 forwarding note, the sample was forwarded through the Excise Guard E.P.Sreenivasan. The forwarding note is dated 21.9.1998 and it is received in the Court on 22.9.1998. As per the endorsement in Ext.P7 Analyst report, the Analyst received the sample as per letter No.162/98 dated CRL.APPEAL NO.420 OF 2005 7 22.9.1998 of the Judicial First Class Magistrate, Kunnamangalam on 21.10.1998. The sample was received by the Analyst through Excise Guard E.P. Sreenivasan. Where was the sample from 22.9.1998 till 21.10.1998 is not clear from the evidence. There is almost one year delay in producing the sample before the Analyst. It is a fundamental principle in abkari cases that the prosecution has to prove all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst. Then only, the court can rely on Analyst report. In this case, there is long delay between the date on which the sample was despatched from the court concerned and the date on which the Analyst received the same. There is no explanation from the prosecution for the said delay. This Court in **Madhavan Vs. State of Kerala** CRL.APPEAL NO.420 OF 2005 8 (2019 (4) KLT 18), this Court observed like this: _“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”_ In this case also the prosecution miserably failed to prove all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst. In the light of the above decision, the appellant is entitled the benefit of doubt. CRL.APPEAL NO.420 OF 2005 9 11. Moreover, the Excise Guard E.P.Sreenivasan, who took the sample to the Analyst was not examined in this case. In view of the above also, the appellant is entitled the benefit of doubt. Hence, this Criminal appeal is allowed. The conviction and sentence imposed as per the judgment dated 7.1.2005 in S.C.No.316 of 2002 of the Additional District & Sessions Court, Fast Track (Adhoc II), Kozhikode are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**