VAYALALAM JANARDHANAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943 CRL.A NO. 2000 OF 2007** **AGAINST THE JUDGMENT DATED 20.09.2007 IN SC 145/2002 OF ADDITIONAL SESSIONS JUDGE ADHOC)-III, THALASSERY, KANNUR** ## **APPELLANT/ACCUSED:** **VAYALALAM JANARDHANAN, S/O. NARAYANAN, JINSHALAYAM, MUZHAKKUNNU AMSOM, VILAKKODE.** **BY ADV SMT.T.SUDHAMANI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2000 of 2007** 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.2000 of 2007** ## **------------------------------------** Dated this the 26[th] day of July, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 20.09.2007, passed by the learned Additional Sessions Judge (Adhoc-III), Thalassery in SC.No.145/2002. 2. By the impugned judgment, the appellant was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 07.08.2000 at about 05.50 p.m., the accused was found in possession of 2 liters of illicit arrack in a plastic Can at Choolavekkumpara in Keezhur Amsom. The offence was detected by the Sub Inspector of Police, Iritty Police Station. 4. After completion of investigation, final report was submitted against the accused for the offence **CRL.A NO. 2000 of 2007** 3 punishable under Section 58 of the Abkari Act before the Judicial First Class Magistrate Court, Mattannur. 5. The case was committed to the Sessions Court, Thalassery, from where it was made over to the Additional Sessions Judge (Adhoc-III), Thalassery. On appearance of the accused charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 3 and Exts.P1 to P7 and MOs. 1 and 2. 7. After closure of the evidence on behalf of the prosecution, the 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 that there was evidence against the accused and hence he was called upon to enter on his defence and to **CRL.A NO. 2000 of 2007** 4 adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of six months and to pay a fine of Rs.1,00,000/- under Section 58 of the Abkari Act. 8. Heard Smt.T.Sudhamani, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence: - (a) Prosecution has not satisfactorily explained the delay in the production of the properties including the sample before the court. (b) The prosecution has not succeeded in **CRL.A NO. 2000 of 2007** 5 establishing that the contraband substance allegedly seized from the possession of the accused ultimately reached the Chemical Examiner's laboratory. (c) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 10. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. 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** 12. PW1, the Sub Inspector of Police, Iritty Police Station, was on patrol duty on 07.08.2000. At about 17:00 hours, on getting reliable information that the accused was engaged in the sale of illicit arrack at Punnad area, the Police team proceeded to there. The **CRL.A NO. 2000 of 2007** 6 accused was found in possession of 2 liters of illicit arrack at the place of occurrence. PW1 seized the contraband substance found in the possession of the accused. He collected 375 ml of arrack from the Can as sample in a bottle and sealed the same. The accused was arrested from the spot. PW1 also seized a glass tumbler possessed by the accused. He prepared Ext.P2 seizure mahazar. PW1 registered FIR No.203/2000 alleging offence under Section 58 of the Abkari Act against the accused. 13. PW2, an independent witness, supported the prosecution version. He testified that he had witnessed the arrest and seizure of the accused from the place of occurrence. PW3, the SI of Police, Ulikkal Police Station, conducted part of the investigation. PW1 completed investigation and submitted final report before the Court against the accused. 14. The learned counsel for the appellant/accused contended that the prosecution has not satisfactorily explained the delay in the production of the properties **CRL.A NO. 2000 of 2007** 7 including the sample before the court. Ext.P4, list of properties, sent to the Magistrate would show that the properties including the sample reached the court only on 11.08.2000. PW1, the detecting officer gave evidence that the articles seized from the possession of the accused were in the safe custody till the articles were produced before the court. He added that as he was busy with law and order duty, the articles could not be produced before 11.08.2000. The explanation given by PW1 is no way satisfactory. 15. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] held thus: “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 **CRL.A NO. 2000 of 2007** 8 ## supplied) 16. 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 the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 17. The learned counsel for the appellant/accused further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused ultimately reached the Chemical Examiner's laboratory. 18. The learned counsel for the appellant/accused relied on the following circumstances to substantiate her contentions: (a) PW1, the detecting officer, has not given **CRL.A NO. 2000 of 2007** 9 evidence as to the nature and description of the seal affixed on the bottle containing the sample. (b) Ext.P2, seizure mahazar, is silent regarding the nature and description of the seal used by the detecting officer. 19. PW1, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P2, seizure mahazar, is also silent regarding the specimen impression of the seal stated to have been affixed on the bottle containing the sample. 20. 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. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. **CRL.A NO. 2000 of 2007** 10 21. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer. Ext.P6, the copy of the forwarding note, is silent regarding the date on which the bottle containing the sample was forwarded to the Chemical Examiner's laboratory. PW1, the Sub Inspector of Police, Iritty Police Station, has not mentioned the date on which Ext.P6, the copy of the forwarding note, was prepared. The learned Magistrate who countersigned Ext.P6, the copy of the forwarding note, also omitted to mention the date on which he affixed his signature. 22. Ext.P7, certificate of chemical analysis, shows that the bottle containing the sample was received by the laboratory as per letter No.RP 282/2000 of the Judicial First Class Magistrate Court, Mattannur which was dated nil. Ext.P7, certificate of chemical analysis, shows that the sample reached the laboratory on 13.10.2000. 23. This Court is in the dark as to the date on **CRL.A NO. 2000 of 2007** **==> picture [16 x 9] intentionally omitted <==** which the bottle containing the sample was forwarded to the Chemical Examiner's laboratory. 24. It is the admitted case of the prosecution that the sample changed several hands before it reached the Chemical Examiner's laboratory. The sample remained in the custody of the Thondi Clerk of the court, the Police official who received the sample from the court and the Police official, who delivered the sample to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. The sample remained in the laboratory for a period of more than one year. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the perioda fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303]) 25. Ext.P7, certificate of Chemical analysis would **CRL.A NO. 2000 of 2007** 12 show that the sample reached the laboratory on 13.10.2000 and the same was analysised only on 15.10.2001, after a lapse of one year. 26. While dealing with the question of delay in the analysis of the sample 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 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.” 27. In the instant case, the long delay in the analysis of the sample remains unexplained. In view of the above discussed infirmities no evidentiary value can be attached to Ext.P7 certificate of chemical analysis. 28. In **Vijay Pandey v. State of U.P** (AIR 2019 SC **CRL.A NO. 2000 of 2007** 13 3569), the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 29. 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. (vide: **Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]) 30. 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 benefit of doubt arising from the absence of link evidence as discussed above. 31. The upshot of the above discussion is that the **CRL.A NO. 2000 of 2007** **==> picture [16 x 9] intentionally omitted <==** conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS