Kerala High Court
Omanakuttan vs The State Of Kerala on 5 April, 2024
Crl. Appeal No. 264/2010 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.A NO. 264 OF 2010
JUDGMENT DATED 23.01.2010 IN SC NO.541 OF 2006 OF ADDITIONAL DISTRICT &
SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA
APPELLANT/ACCUSED:
OMANAKUTTAN, AGED 44 YEARS,
S/O. KOCHUKUTTY, ARUN BHAVAN, PARAYIL,, CHAVARUKAVU,
V.KOTTAYAM.
BY ADV SRI.S.SHANAVAS KHAN
RESPONDENTS:
THE STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
SRI. SANAL. P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2024, THE COURT ON
05.04.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 264/2010 :2:
JOHNSON JOHN, J.
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Crl. Appeal No. 264 of 2010
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Dated this the 5th day of April, 2024.
JUDGMENT
The accused in S.C. No. 541 of 2006 on the file of the Additional District and Sessions Judge, (Adhoc) Fast Track Court-I, Pathanamthitta filed this appeal challenging the conviction and sentence imposed on him for the offence punishable under Section 8(1) r/w 8 (2) of the Kerala Abkari Act as per the impugned judgment dated 23.01.2010.
2. The appellant is convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act.
3. The prosecution case is that on 01.02.2005, at about 8 p.m., while the Sub Inspector of Konni Police Station and party were conducting law and order patrol duty, they saw the accused standing on the side of the road at Chavarukavu with a plastic bottle of 2 litre capacity and on examination, it was found that the bottle contained 1.870 litres of arrack and he is thereby alleged to have committed the offence as aforesaid.
Crl. Appeal No. 264/2010 :3:
4. The trial court, after framing charge, examined PWs 1 to 5 and marked Exhibits P1 to P8 and MO1 from the side of the prosecution and no evidence was adduced from the side of the defence. After trial and hearing both sides, the trial court found the accused guilty of the offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari Act and imposed the sentence as aforesaid.
5. Heard Shri. S. Shanavas Khan, the learned counsel for the appellant and Sri. Sanal P. Raj, the learned Public Prosecutor.
6. The learned counsel for the appellant argued that the Sub Inspector of Police, who detected the case and conducted the investigation, has not given evidence as to the nature of the seal affixed on the contraband articles alleged to be recovered and the sample bottles and in Exhibit P1 mahazar also, the specimen impression of the seal used is not affixed and further, there is also nothing in the mahazar regarding the nature of the seal used. The learned counsel for the appellant pointed out that a perusal of Exhibit P8, Chemical Analysis Report, would show that the sample forwarded, as per letter dated 23.02.2005 through Police Constable 1838 from the Judicial First Class Magistrate II Pathanamthitta, has reached the Chemical Examiner's Laboratory at Thiruvananthapuram only on 18.03.2005 and the prosecution has not furnished any explanation for the delay. It is also Crl. Appeal No. 264/2010 :4: pointed out that the Investigating Officer has also not affixed the specimen impression of the seal in Exhibit P6 property list so as to enable the court for a proper comparison of the contraband items and the sample collected at the place of occurrence as per Exhibit P2 mahazar.
7. A perusal of the evidence of PW4, Sub Inspector who detected the offence and conducted the investigation, shows that even though he deposed regarding the occurrence in tune with the prosecution case, his deposition does not contain the relevant aspects regarding the nature of the seal used when he had drawn sample from the contraband seized.
8. It cannot be disputed that the Detecting Officer who had drawn the sample had to give evidence as to the nature of the seal affixed on the bottle containing the sample and the specimen impression of the seal used is also required to be affixed in the seizure mahazar and the property list so as to enable proper comparison to ensure tamper free collection and production of sample before the court and the Chemical Examiner's Laboratory.
9. In Sasidharan v. State of Kerala [2007(1) KLT 720], this Court has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof Crl. Appeal No. 264/2010 :5: condition, unless the link evidence of actual sampling and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the prosecution cannot be held to have brought home the offence against the appellant.
10. I find force in the argument of the learned counsel for the appellant that the absence of impression of specimen seal in the mahazar and property list and the inordinate delay in producing the sample in the Chemical Examiner's Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. It cannot be disputed that the prosecution is duty bound to prove that there was tamper proof despatch of the sample to show that the sample taken from the contraband articles seized from the accused was the sample which reached the hands of the Chemical Examiner. Since the prosecution failed to prove the same, it cannot be held that the link evidence was established.
11. Therefore, on a careful re-appreciation of the evidence available, I find that the prosecution has failed to comply the mandates necessary to ensure tamper proof collection and despatch of sample and in that circumstance, it is found that the appellant/accused is entitled for the benefit of reasonable doubt and therefore, the conviction and sentence imposed by the trial court against the appellant/accused is Crl. Appeal No. 264/2010 :6: liable to be set aside.
In the result, the appeal is allowed and the conviction and sentence imposed by the trial court against the appellant/accused is set aside and he is acquitted of the offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled and he is set at liberty forthwith. Interlocutory applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN, JUDGE.
Rv