Kerala High Court

Ramachandran vs State Of Kerala on 4 August, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
  WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                       CRL.A NO. 2123 OF 2006
 AGAINST THE    JUDGMENT DATED 19.10.2006 IN SC.NO.130/2004 OF
   ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA, IDUKKI
APPELLANT/ACCUSED:

            RAMACHANDRAN, S/O.KUNJAN,
            ELKKALAYIL VEEDU, 40 ACRE BHAGOM, PUTTADI KARA,
            ANAKKARA VILLAGE.

            BY ADVS. GRASHIOUS KURIAKOSE (SR.)
            PRANOY K.KOTTARAM



RESPONDENT/COMPLAINANT:

            STATE -S.I. OF POLICE,
            VANDANMEDU POLICE STATION,
            REP. BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

            BY ADV SRI.M.C.ASHI, PUBLIC PROSECUTOR


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2123 OF 2006

                                     2




                       K. BABU J.
          ------------------------------------
                  Crl.A.No.2123 of 2006
          ------------------------------------
              Dated this the 4th         day of August, 2021

                         J U D G M E N T

Challenge in this appeal is to the judgment dated

19.10.2006, passed by the Additional Sessions Court,

(Adhoc-II), Thodupuzha, in SC.No.130/2004.

2. By the impugned judgment the accused was

convicted of the offences punishable under Sections 55(i)

and 8(2) of the Kerala Abkari Act.

3. The prosecution case is that on 18.12.2001 at

about 05.30 p.m., the accused was found in possession of

400 ml of arrack in a 750 ml bottle. He was also carrying

an empty 5 liter Can and a glass tumbler. The offence was

detected by the SI of Police, Vandanmedu.

4. After completion of the investigation, final

report was submitted against the accused for the offences CRL.A NO. 2123 OF 2006

punishable under Sections 55(a), 55(i) and 8(2) of the

Abkari Act before the Judicial First Class Magistrate

Court, Nedumkandam.

5. The case was committed to the Sessions Court,

Thodupuzha, from where it was made over to the Trial

Court. On appearance of the accused charges were framed

against him for the offences punishable under Sections

55(a), 55(i) and 8(2) of the Abkari Act. The accused

pleaded not guilty and therefore, he came to be tried by

the trial court for the aforesaid offences.

6. The evidence for the prosecution consists of the

oral evidence of PWs. 1 to 3, Exts.P1 to P8 and MO.1.

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

adduce evidence, if any, he may have in support thereof. CRL.A NO. 2123 OF 2006

The learned trial court, after hearing arguments

addressed from both sides, found that the accused is

guilty of offences under Sections 55(i) and 8(2) of the

Abkari Act and he was convicted thereunder. The accused

was sentenced to undergo rigorous imprisonment for a term

of one year and to pay a fine of Rs.1,00,000/-.

8. Heard Sri.Pranoy K. Kottaram, the learned

counsel appearing for the appellant/accused and

Sri.M.C.Ashi, 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) The inordinate delay in the production of the

properties before the court has not been

satisfactorily explained by the prosecution.

(b) The prosecution has not succeeded in

establishing that the contraband substance

allegedly seized from the place of occurrence CRL.A NO. 2123 OF 2006

was eventually subjected to analysis at the

Chemical Examiner's laboratory.

10. The learned Public Prosecutor, per contra,

submitted that the prosecution could well establish the

charges 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. PW3, the SI of Police, Vandanmedu Police

Station, on 18.01.2001, was on patrol duty. When he

reached IMS colony bhagom at about 05.20 p.m., the

accused was found selling illicit arrack. The accused was

carrying 400 ml of illicit arrack in a 750 ml bottle. He

was also carrying an empty 5 liter Can and a glass

tumbler. PW3 seized the contraband substance found in the

possession of the accused. He also seized a sum of Rs.310

from the possession of the accused. PW3 prepared Ext.P2

Seizure Mahazar.

CRL.A NO. 2123 OF 2006

13. PWs 1 and 2, the independent witnesses, did not

support the prosecution case.

14. The learned counsel for the appellant/accused

contended that the inordinate delay in the production of

the properties including the sample before the court has

not been satisfactorily explained by the prosecution.

15. PW3 has given evidence that the properties

including the sample were produced before the court only

on 21.12.2001. The explanation given by PW3 is that lack

of sufficient Police force in the Police Station caused

the delay in the production of the properties before the

court. The accused and the other contemporaneous

documents were produced before the court on 19.12.2001

itself.

16. 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 CRL.A NO. 2123 OF 2006

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 supplied)

17. 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 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.

18. The learned counsel for the appellant/accused

relied on the following circumstances to contend that the

prosecution has not succeeded in establishing that the

contraband substance allegedly seized from the place of

occurrence ultimately reached the Chemical Examiner's CRL.A NO. 2123 OF 2006

laboratory:

(a) PW3, the detecting officer, has not given

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 said to have

been used.

(c) There is no convincing evidence to show that the

specimen impression of the seal had been

produced before the court and forwarded to the

Chemical Examiner's laboratory.

(d) There is no satisfactory explanation for the

delay in the analysis of the sample at the

Chemical Examiner's laboratory.

19. PW3 gave evidence that he had sealed the

bottle containing the sample at the scene of occurrence.

But he has not given evidence as to the nature and

description of the seal affixed on the bottle containing

the sample. Ext.P2, seizure mahazar, does not contain any CRL.A NO. 2123 OF 2006

narration as to the nature and description of the seal

affixed on the bottle containing the sample.

20. In Bhaskaran v. State of Kerala and another

(2020 KHC 5296) and Krishnadas v. State of Kerala (2019

KHC 191), this Court held that 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.

21. Ext.P7 is the covering letter dated 14.08.2002

sent by the Judicial First Class Magistrate Court,

Nedumkandam while forwarding the sample to the Chemical

Examiner's laboratory for analysis. In Ext.P7, there is

no mention that the specimen impression of the seal had

been forwarded to the Chemical Examiner's laboratory.

22. The specimen impression of the seal shall be

produced before the court and forwarded to the Chemical

Examiner's laboratory so as to enable the court to

satisfy the genuineness of the sample produced in the CRL.A NO. 2123 OF 2006

court and forwarded to the Chemical Examiner's

laboratory. (vide: Achuthan v. State of Kerala [ILR 2016

(2) Ker. 145]).

23. When the specimen of the seal affixed on the

sample bottle is not produced before the Court and

forwarded to the chemical examiner for verification to

ensure that the sample seal, so provided, was tallying

with the seal affixed on the sample bottle, no

evidentiary value can be given to the chemical analysis

report and it cannot be found that the very same sample

which was drawn from the contraband article allegedly

seized from the possession of the accused reached the

hands of the chemical examiner without any tampering.

(vide: Rajamma v. State of Kerala [2014 (1) KLT 506])

24. Ext.P7 would further show that the sample was

received by a Police Constable by name of K.C.John from

the court on 14.08.2002. Ext.P8, certificate of chemical

analysis, would show that the sample reached the Chemical

Examiner's laboratory only on 16.08.2002. It has come out CRL.A NO. 2123 OF 2006

in evidence that the sample remained in the custody of

the property clerk of the court while it was in the court

and in the custody of Sri.K.C.John, the Police official

concerned for 3 days. Neither the property clerk of the

court nor Sri.K.C.John was examined as witness by the

prosecution to prove that while in their custody the seal

was not tampered with. 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 period-a fact which had to be proved

affirmatively by the prosecution.

25. The Apex court in State of Rajasthan v. Daulat

Ram [(1980) 3 SCC 303] held that where the sample changed

several hands before it reached the Chemical Examiner's

laboratory, the prosecution has to establish, by

examining those who had the custody of sample, that the

sample was not tampered with while in the custody of

officials concerned.

26. Ext.P8, the certificate of chemical analysis, CRL.A NO. 2123 OF 2006

would show that the sample reached the Chemical

Examiner's laboratory on 16.08.2002, but the same was

analysised only on 05.12.2003.

27. The learned counsel for the appellant contended

that the delay in analysis of the sample, which has not

been explained satisfactorily, is also fatal to the

prosecution. While dealing with the question of delay in

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."

28. In the instant case, the delay of more than one

year in the analysis of the sample remains unexplained. CRL.A NO. 2123 OF 2006

29. In Vijay Pandey v. State of U.P (AIR 2019 SC

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.

30. 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