VELAYUDHAN v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-03-12
Court Decision / Holding: Appeal allowed. The conviction of the appellant under Section 55(a) of the Abkari Act is hereby set aside. The appellant is to be released forthwith if not required in any other case. The bail bond shall stand cancelled, and any bail money deposited shall be refunded.
Final Disposition: Appeal allowed; conviction under 55(a) set aside; release of the appellant; bail bond cancelled; refund of bail money.

Parties to the Case

Appellants / Petitioners

Velayudhan, S/o. Cheriyathan, Palakkavallappil House, Kunnamangalam, Chengani Malappuram District

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Babu S. Nair

Counsels for Respondents

• Public Prosecutor Sri K. K. Rajeev

Case Synopsis & Summary

This is a Kerala High Court criminal appeal by Velayudhan, the fourth accused, challenging the judgment in SC No. 209/2002 of the Additional Sessions Court (Adhoc) II, Manjeri, which convicted him under Section 55(a) of the Abkari Act and acquitted him under Section 55(g). The prosecution case arises from a 9 January 2000 early morning interception of jeep KL-7B-1332, in which the accused were found transporting illicit arrack. Contraband was seized, samples drawn, and Ext. P1 mahazar prepared, with Ext. P4 indicating production of materials in court only after a delay. Two independent witnesses testified to recovery but did not fully support the case; Pw1, the Sub-Inspector, testified to detection, while Pw2 offered a conflicting timing. The defense argued serious infirmities in the prosecution, particularly that the time of detection and the delayed production of contraband and samples undermine chain-of-custody and link evidence. The court notes the absence of explanation for the delay and the lack of proof that samples reached the laboratory in a tamper‑proof condition, citing Ravi v. State of Kerala (2011(3) KLT 353) for the principle that lack of link evidence can render a conviction unsustainable. Accordingly, the High Court allows the appeal, sets aside the conviction under Section 55(a), and directs the accused to be released, with the bail bond cancelled and any bail money refunded.

Provisions of Law Cited

Section 55(a) of Abkari ActSection 55(g) of Abkari Act

Legal Doctrines & Maxims

Chain of custody / link evidence requirement for contraband samples; tamper-proof handling of exhibits

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel contends that substantial infirmities in the prosecution case were overlooked by the trial court. The evidence adduced is insufficient to convict under Section 55(a); inconsistencies exist in the timing of detection (Pw1 says 4.30 am, Pw2 9.00 am); there is unexplained delay in producing contraband and samples, raising doubts about custody and tamper‑proof handling. The lack of link evidence connecting recovered contraband to the samples reaching the lab renders the conviction unsustainable, a principle reinforced by Ravi v. State of Kerala.

Contentions of Respondents

The prosecution maintains that the official detection, seizure, and Ext. P1‑P4 materials establish a valid case for conviction under 55(a); the witnesses corroborate the recovery and the prosecution’s chain of events; the trial court’s findings should be respected absent clear infirmities.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ravi v. State of Kerala	2011(3) KLT 353	Positive	The court relies on the Ravi decision to emphasize the necessity of link evidence showing a tamper‑proof chain from seizure to lab analysis; absence of such link evidence invalidates the conviction.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 12TH DAY OF MARCH 2014/21ST PHALGUNA, 1935** ## **CRL.A.No. 51 of 2005 ( )** ## **------------------------** **AGAINST THE JUDGMENT IN SC 209/2002 of ADDL.SESSIONS COURT (ADHOC)-II, MANJERI, DATED 10-12-2004** **APPELLANT/ACCUSED NO.4:-** **----------------------** **VELAYUDHAN, S/O. CHERIYATHAN, PALAKKAVALAPPIL HOUSE, KUNNAMANGALAM, CHENGANI MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT/STATE:----------------** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE AREACODE POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**Kvs/-**_ ## **A.HARIPRASAD, J.** = = = = = = = = = = = = = Crl.Appeal.No.51 of 2005. = = = = = = = = = = = = = Dated this the 12[st] March, 2014. ## **J U D G M E N T** Fourth accused in SC.No.209 of 2002 on the file of the Additional Sessions Court (Adhoc) No.II, Manjeri was tried for offences punishable under Section 55(a) and 55(g) of Abkari Act. Learned trial Judge found the appellant guilty of the offence under Section 55(a) of Abkari Act and he was convicted. He was acquitted of all the charges under Section 55(g) of Abkari Act. That conviction and sentence is challenged in this appeal. 2. The prosecution case shortly stated is that, on 9.1.2000 at about 4.30 am. the detecting Officer intercepted a jeep bearing No.KL-7B-1332 in which the appellant and other accused were travelling. In a search conducted in the jeep, it was found that the accused persons were transporting illicit arrack in the vehicle. The accused **Crl.Appeal.No.51/2005.** 2 persons were arrested. It is come out in evidence that the first accused died pending the proceedings. Accused 2 and 3 were absconding and therefore they could not be tried. The fourth accused/appellant stood the trial. 3. The prosecution examined five witnesses and marked five documents. Mo1 to 16 were also marked. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant would contend that the trial court overlooked serious infirmities in the prosecution case. It is contended that the trial court should have found that the evidence adduced against the appellant are highly insufficient to convict the accused for an offence under Sec.55(a) of the Act. 6. Pw1 is the officer who detected the offence. At the material time, he was working as Sub Inspector of Police, Areacode. He got a reliable information that the accused persons were engaged in illicit distillation of **Crl.Appeal.No.51/2005.** 3 arrack. Therefore, on 9.1.2000 at about 4.30 hours in the morning, he along with his party waited for the informed jeep to pass through that area. When they sighted the jeep, it was intercepted and found the accused persons, including the appellant, seated in the jeep. On examination of the jeep, it is revealed that they were transporting two cans, each having a volume of about 10 litres, a can having a volume of 25 litres and another one having 40 litres volume placed in the jeep. When the cans were examined, the detecting Officer and party were satisfied that the accused were transporting illicit arrack. After drawing up samples from the contraband, it was properly sealed and secured. Accused persons were arrested and Ext.P1 mahazar was prepared from the place of occurrence. The prosecution has another case that as informed by the accused, after their arrest, certain used utensils and vessels intended for distillation were also recovered through Ext.P2 mahazar. However, we are not concerned with those material objects **Crl.Appeal.No.51/2005.** 4 and Ext.P2 because the court below had acquitted the appellant on a charge under Sec.55(g) of the Act. Further, the acquittal has become final as it was not challenged. Therefore, we will confine to Ext.P1 and other materials relating to possession of illicit liquor. Pw1 identified the material objects recovered from the accused. Pw3 and 4 are the independent witnesses cited to prove recovery of the contraband from the jeep. They refused to support the prosecution case in its entirety. Pw2 was working as Police Constable during the material time. Pw3 stated that he had signed on Exts.P1 and P2 mahazars. 7. Counsel for the accused contended that the time of detection stated by Pw1 does not tally with what is stated by Pw2. According to Pw1, they intercepted the jeep at about 4.30 hours in the morning on 9.1.2000. Pw2 who deposed that the jeep was seen at about 9.00 am. on that day. It appears that it could only have been an innocent mistake. Pw5 conducted investigation and he submitted **Crl.Appeal.No.51/2005.** 5 Ext.P4 forwarding note. 8. Learned counsel for the appellant contended that the whole prosecution is vitiated because the contraband articles and samples were produced in court much after the alleged detention. Further, none of the material witnesses did state any reason for the delayed production of the contraband articles and samples. According to the case of prosecution, the detection and recovery of contraband was effected on 9.1.2000. It is seen from the forwarding note (Ext.P4) that it was produced before the Magistrate only on 24.4.2000, though it is dated 28.1.2000. Who was in custody of the contraband till 24.4.2000 or whether it was produced in court in the same condition as it was at the time of detection has not been spoken to either by Pw1 or Pw5. In the absence of any evidence to find that the contraband allegedly recovered from the possession of the accused reached the chemical laboratory without any tampering, it has been held in **Ravi v. State of Kerala** **Crl.Appeal.No.51/2005.** 6 (2011(3) KLT 353) by a Division Bench of this Court that a conviction cannot be sustained on the basis of such an evidence. It has been categorically held therein that there must be link evidence to connect the recovery of contraband from the accused and ultimate reaching of the sample in the chemical laboratory without any possibility of tampering. In this case there is no explanation stated by the prosecution witnesses regarding reasons for the delay and who were responsible for keeping the sample and also whether they were produced before the court in a tamper proof condition. In the absence of proof regarding this aspect, I find that the conviction awarded under Sec.55(a) is unsustainable. Therefore, the appeal deserves to be allowed. 9. In the result, appeal is allowed. The conviction of the appellant by the trial court under Section 55(a) of the Abkari Act is hereby set aside. He shall be set free forthwith, if he is not required in any other case. The bail **Crl.Appeal.No.51/2005.** 7 bond shall stand cancelled. If he deposited any amount as a condition for getting bail, it shall be refunded to him. **Sd/A.HARIPRASAD, (Judge)** **Kvs/-** ## **-// true copy //-** **PA TO JUDGE.**