T.V. Pradeep S/o Kunhiraman v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.1540 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 263/2005 DATED 08-06-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN CP 195/2004 DATED 17-03-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG** ## **APPELLANT:** **T.V. PRADEEP S/O.KUNHIRAMAN, AGED 26 YEARS, OZHINHAVALAPPU, KANHANGAD VILLAGE.** **BY ADV. SMT.O.H.NAZEEBA** ## **RESPONDENT:** **THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** **OTHER PRESENT:** **SRI.K.B.UDAYAKUMAR,SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1540 of 2006 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.1540 of 2006 =================== Dated this the 2[nd] day of December, 2020** ## **J U D G M E N T** Appellant is the accused in S. C. No. 263/2005 on the file of Additional Sessions Judge, (Adhoc-I), Kasargod. The above case is charge sheeted by the Sub Inspector of Police, Hosdurg Police station against the appellant alleging offence punishable under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that, on 23.10.2002 the accused was found in possession of 11 packets, each containing 100 ml of arrack produced in the state of Karnataka. The accused was arrested and the contraband articles were seized. Hence, it is alleged that the accused committed the offence. Crl.A. No.1540 of 2006 3 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts. P1 to P9 are the exhibits marked on the side of the prosecution. MO1 to MO3 are the material objects. 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo rigorous imprisonment for a further period of one month. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard. 6. According to the prosecution, the contraband articles seized from the possession of the accused on 23.10.2002. But, as per Ext. P3 property list, the sample and the contraband articles reached the Court only on 25.10.2004. There is no proper explanation from the side of Crl.A. No.1540 of 2006 4 prosecution regarding the delay in producing the contraband before the Court. Delay in producing the contraband articles allegedly seized from the accused is fatal to the prosecution if there is no explanation. 7. The seizure of the contraband in this case was on 23.10.2002. The sample reached the court only on 25.10.2004. There is no explanation from the side of the prosecution regarding the delay in producing the sample before the Court. This point is also considered by this Court in _**Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT 822)**_ . The relevant portion of the judgment in _**Ravi's case (supra)**_ is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in _**Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83**_ wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit Crl.A. No.1540 of 2006 5 of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 8. Moreover, Ext.P8 forwarding note is silent with regard to the name of the person with whom the sample was sent to the analyst. But in Ext.P9 it is stated that, the sample is received by the analyst from PC No. 846 on 21.12.2002. But the number of the police constable not mentioned in Ext. P8 forwarding note. 9. Admittedly, the property list is not produced or marked in this case. The relevancy of the property list in abkari case is considered by this Court on earlier occasions. The Court can note the date on which the property reached the Court with the help of the property list. If that is not produced, that is fatal to the prosecution. Crl.A. No.1540 of 2006 6 10. Moreover, the forwarding note is silent with regard to the name of the person to whom the sample is forwarded to the analyst. Ext.P8 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in _**Kumaran v. State of Kerala [2016 (4) KLT 718]**_ held as follows: _“There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible_ Crl.A. No.1540 of 2006 7 _from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamperproof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 11. In the light of the above discussions, I think, the appellant is entitled the benefit of doubt. Crl.A. No.1540 of 2006 8 Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 08.06.2006 in S. C. No. 263/2005 on the file of Additional Sessions Judge, (Adhoc-I), Kasargod is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU