Vijayakumar s/o Karunakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** ## **CRL.A.NO.2306 OF 2006** ## **AGAINST THE JUDGMENT IN S.C.NO.260/2004 OF ADDITIONAL SESSIONS COURT (FAT TRACK COURT-I), THIRUVANANTHAPURAM APPELLANT/ACCUSED:** VIJAYAKUMAR S/O.KARUNAKARAN, VAYALTHITTA VEEDU, PERURKUZHY DESOM, AZHOOR VILLAGE. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.LAKSHMI RENJITH SRI.DILEEP P.PILLAI SRI.PRABHU VIJAYAKUMAR SRI.RENJITH B.MARAR SRI.T.K.SUJITH SRI.V.SHYAMOHAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.2306/06 ## _**JUDGMENT**_ Dated this the 12[th] day of July, 2021 Aggrieved by the judgment dated 1.11.2006 passed by the learned Additional Sessions Judge (Fast Track Court-I), Thiruavananthapuram in Sessions Case No.260 of 2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 1.9.2001, at 2.15 P.M., the accused was found in possession of 2.05 litres of Indian made foreign liquor in three 750 ml. bottles at Vayalthitta in Azhoor Village. The offence was detected by the then Additional Sub Inspector of Police, Chirayinkeezhu Police Station. 4. After completion of investigation, final report was submitted against the accused by PW5, Sub Inspector of Police, Venjaramoodu for the offences punishable under Sections 55(a) and (i) of the Abkari Act before the Judicial First Class Magistrate Court-I, Attingal. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court (Fast Track Court - I), Thiruvananthapuram. On appearance of the accused, charges were framed against the accused for the offences punishable 3 Crl.A.No.2306/06 under Sections 55(a) and (i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the aforesaid offences. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exhibits P1 to P6 and MOI and MOII series. 6. 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 total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that that the accused is guilty of the offence punishable under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 1½ years and to pay fine of Rs.1,00,000/-. 7. Heard Sri.Sasthamangalam S.Ajith Kumar, learned counsel appearing for the appellant and Sri.M.S.Breez, learned Senior Public Prosecutor. 8. The learned counsel for the appellant canvassed the following grounds to challenge the impugned judgment. 4 Crl.A.No.2306/06 - (i) There is no satisfactory explanation for the delay in the production of the properties before the court. - (ii) The prosecution failed to establish that the articles said to have been seized from the possession of the accused eventually reached the Chemical Examiner’s laboratory. 9. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction and the sentence passed against the accused are sustainable or not. ## The Point : 11. PW4 has given evidence that on 1.9.2001, the accused was found in possession of the contraband substance at Azhoor Vayalthitta in Azhoor Village. He has given evidence that the contraband substances were recovered from the possession of the accused as per Exhibit P1 seizure mahazar and that the accused was arrested from the spot itself. 12. PW3, the police constable who had accompanied PW4, supported the version of PW4. PWs 1 and 2, the independent witnesses examined to prove the incident proper, did not support the prosecution case. PW5 submitted final report against the accused. 5 Crl.A.No.2306/06 13. The learned counsel for the appellant submitted that there is no satisfactory explanation for the delay in the production of the articles allegedly seized from the possession of the accused before the court. Exhibit P3 shows that the properties reached the court only on 11.9.2001. PW5 admitted before the court that the properties allegedly recovered on 1.9.2001 were produced before the court only on 11.9.2001. His explanation for the delay in the production of the properties was that he was incapacitated to place them before the court in time due to pressure of work. It is pertinent to note that the properties were entrusted to PW5 on 1.9.2001 itself. It is seen that he had prepared even the property list only on 6.9.2001. His explanation for the delay in the production of the articles before the court is no way satisfactory and acceptable. PW5 further stated that the properties were in the possession of another Additional Sub Inspector of Police. 14. On the question of delay in the production of the properties, a Division Bench of this Court in _**Ravi v. State of Kerala & another** (2011(3) KHC 121)_ held thus: _“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._ 6 Crl.A.No.2306/06 _There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ The Division Bench held that the 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 sample could not be ruled out. 15. The learned counsel for the appellant further contended that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused eventually reached the Chemical Examiner’s laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions. (a) The detecting officer (PW4) and the other official witness have not given evidence as to the nature and description of the seal stated to have been affixed on the bottles containing the contraband substance. (b) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as 7 Crl.A.No.2306/06 to the nature and description of the seal used by the detecting officer. (c) Exhibit P4, copy of the forwarding note, does not contain the specimen impression of the seal. (d) The name of the police official with whom the sample was sent for chemical examination has not been mentioned in Exhibit P4. (e) There is no evidence as to who had drawn the sample sent for chemical analysis. 16. I have gone through the depositions of the witnesses and Exhibit P1 mahazar. PW4, the detecting officer and the other official witnesses have not given evidence as to the nature and description of the seal affixed on the bottles containing the contraband substance. Exhibit P1 seizure mahazar is silent regarding the specimen impression stated to have been affixed on the bottles containing the contraband. 17. The specimen of the seal affixed on the sample has not been produced before the court. In the absence of any specimen impression on Exhibit P4 copy of the forwarding note, it cannot be inferred that the specimen seal was provided to Chemical Examiner’s laboratory. 8 Crl.A.No.2306/06 18. The learned counsel for the appellant/accused submitted that when 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, no evidentiary value can be given to the certificate of chemical examination. 19. While dealing with a case in which there was no evidence to show that specimen seal was produced before the court, 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 Exhibit P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Exhibit 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”._ 20. 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 9 Crl.A.No.2306/06 value can be given to Exhibit P5 chemical analysis report. 21. In the instant case, there is no evidence to show as to who had drawn the sample. PW5 stated that he had submitted a requisition to the court for taking sample. Exhibit P5 Certificate of Chemical Analysis shows that as per letter dated 16.10.2001, three bottles containing samples were forwarded to the Chemical Examiner’s laboratory by the Judicial First Class Magistrate Court-I, Attingal. But, this Court is kept in the dark as to who took the sample, on which date and how much quantity and also whether it was despatched in a tamper proof condition. In the given fact situation, it was imperative for the prosecution to examine the thondi clerk or the police official who had received the sample from the court for getting it delivered to the Chemical Examiner’s laboratory. It is discernible from Exhibit P3 property list and Exhibit P5 Chemical Examiner’s report that some day between 11.9.2001 and 16.10.2001 somebody might have taken sample from the contraband substance in the court and might have despatched the same under the covering letter of the learned Magistrate. 22. 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 10 Crl.A.No.2306/06 which was drawn from the bulk quantity of the contraband substance said to have been seized from the possession of the accused. This is more so, when the sample might have changed several hands before it reached the hands of the Chemical Examiner [Vide : _**State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)_ **,** _**Valsala v. State of Kerala** (1993 KHC 798),_ _**Sathi v. State of Kerala** [2007(1) KHC 778]_ . 23. In _**Vijay Pandey v. State of U.P.** (AIR 2019 SC 3569)_ , the Apex Court held that mere production of a 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. 24. 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. 25. The upshot of the above discussion is that the conviction entered by the court below, overlooking this vital aspect of the matter, cannot therefore be sustained. The appellant is therefore not guilty of the offence punishable under Section 55(a) of the Abkari 11 Crl.A.No.2306/06 Act. He is acquitted of the charge levelled against him. He is set at liberty. The Criminal Appeal is allowed. Sd/- **K.BABU, JUDGE** csl