Rajeev, S/O. Madhavan vs State Of Kerala
2021 Latest Caselaw 16608 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                 THE HONOURABLE MR.JUSTICE K. BABU
  WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                       CRL.A NO. 777 OF 2006
  AGAINST THE    JUDGMENT IN SC 60/2000 OF ADDITIONAL SESSIONS
    JUDGE, FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM


APPELLANT/ACCUSED:

          RAJEEV, S/O. MADHAVAN,
          PADINJATTATHIL VEEDU, KALAMCHAL DESOM,
          VAMANAPURAM VILLAGE.

          BY ADV SRI.J.JAYAKUMAR



RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REP. BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.



OTHER PRESENT:

          SRI. M.C. ASHI (P.P)



THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 777 OF 2006

                                     2




                       K. BABU J.
           ------------------------------------
                   Crl.A.No.777 of 2006
           ------------------------------------
            Dated this the 11th day of August, 2021

                        J U D G M E N T

Challenge in this appeal is to the judgment dated

21.03.2006, passed by the Additional Sessions Judge, Fast

Track Court, (Adhoc) IV, Thiruvananthapuram, in

SC.No.60/2000.

2. By the impugned judgment the accused was

convicted of the offence punishable under Section 8(2) of

the Kerala Abkari Act.

3. The prosecution case is that on 02.06.1999 at

about 01.00 p.m., the Sub Inspector of Police,

Venjaramoodu, found the accused at Anachal in possession

of 62 packets, each containing 150 ml of arrack.

4. Final report was submitted against the accused

for the offences punishable under Sections 55(a), 55(b) CRL.A NO. 777 OF 2006

and 8(2) of the Abkari Act before the Judicial First

Class Magistrate Court-II, Attingal.

5. The case was committed to the Sessions Court,

Thiruvananthapuram, 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(b) 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 5, Exts.P1 to P9 and Mos.1 to

4.

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. 777 OF 2006

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

two years and to pay a fine of Rs.1,00,000/-.

8. Heard Sri.J.Jayakumar, the learned counsel

appearing for the appellant and Sri.M.C.Ashi, the learned

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 CRL.A NO. 777 OF 2006

allegedly seized from the place of occurrence

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

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. PW5, the Sub Inspector of Police, Venjaramoodu

Police Station, the detecting officer, gave evidence that

on 02.06.1999 at about 01.00 p.m., on getting reliable

information that the accused was engaged in the sale of

illicit arrack at Anachal, the Police team led by him

proceeded to there and arrested the accused along with

the contraband substances. PW5 seized 62 packets of

arrack, each containing 150 ml, from the possession of CRL.A NO. 777 OF 2006

the accused. He also seized 1 plastic bucket, 1 glass

tumbler and an amount of Rs.330/-. PW5 prepared Ext.P1

seizure mahazar.

13. PWs. 1 and 2, the independent witnesses, did

not support the prosecution case.

14. PWs3 and 4, the two Police Constables who had

accompanied PW5 in the search and seizure have given

evidence in support of the version given by PW5.

15. The learned counsel for the appellant/accused

contended that the prosecution has not offered any

satisfactory explanation for the delay in the production

of the properties before the court. The alleged seizure

was effected on 02.06.1999. Exts.P6 and P7, the lists of

properties sent to the Magistrate would show that the

properties were produced before the court only on

05.06.1999. The detecting officer has not given any

satisfactory explanation for the delay in the production

of properties.

CRL.A NO. 777 OF 2006

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 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 the production of the properties before

the court. The unexplained delay in the production of

properties would lead to the conclusion that tampering

with the samples could not be ruled out. CRL.A NO. 777 OF 2006

18. Learned counsel for the accused further

contended that the prosecution has not succeeded in

establishing that the contraband substance allegedly

seized from the place of occurrence was eventually

subjected to analysis at the Chemical Examiner's

laboratory.

19. The learned counsel relied on the following

circumstances to substantiate his contentions:

(a) Ext.P1 seizure mahazar, the contemporaneous

document evidencing seizure, does not contain

any narration as to the nature and

description of the seal used by the detecting

officer.

(b) No sample was drawn at the place of

occurrence by the detecting officer.

(c) There is no evidence to show that the

specimen impression of the seal had been

produced before the court and forwarded to CRL.A NO. 777 OF 2006

the Chemical Examiner's laboratory.

20. The case of the prosecution is that 62 packets,

each containing 150 ml of arrack, were seized from the

possession of the accused. Those 62 packets, allegedly

recovered from the scene of occurrence, were produced

before the court.

21. In Ext.P1 seizure mahazar there is no mention

that the contraband articles seized from the place of

occurrence were sealed at the scene of occurrence.

Admittedly, no sample was drawn at the scene of

occurrence by the detecting officer. The detecting

officer who effected the seizure has given evidence that

he had sealed the contraband substance. He even narrated

the nature and description of the seal used, in his

evidence. However Ext.P1, the contemporaneous document,

does not contain the act of sealing by the detecting

officer. There is also no mention of the nature and

description of the seal stated to have been affixed. CRL.A NO. 777 OF 2006

Hence the credibility of the version of the detecting

officer to the effect that he had sealed the contraband

substance at the scene of occurrence is doubtful.

22. 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 has

to give evidence as to the nature of the seal affixed on

the contraband substance. The nature of the seal used

shall be mentioned in the seizure mahazar. It was further

held that the specimen of the seal shall be produced in

the court so as to enable the court to satisfy the

genuineness of the sample produced in the court.

23. Another vital aspect to be considered is that

this Court is kept in the dark as to who had taken the

sample and sealed the same. In Ext.P6 there is a

submission by the clerk concerned to the learned

magistrate seeking permission to return item No.1 therein

(62 packets) after taking the sample for Chemical CRL.A NO. 777 OF 2006

Examination. This Court is unable to find the order

passed by the learned magistrate on the basis of the

above submission. It appears that somebody might have

taken 2 packets from the bulk quantity available in the

court and forwarded to the Chemical Examiner's

laboratory. There is nothing on record to see that any

specific direction was issued by the learned Magistrate

in this regard. No proceedings were seen issued by the

learned Magistrate directing taking of sample..

24. Ext.P9, certificate of chemical analysis, would

show that one sealed packet containing 2 packets, each

containing 150 ml of clear and coloureless liquid alleged

to be arrack, reached the laboratory. There is no

evidence to show as to the date on which these packets

were taken as sample. It is further seen that Ext.P9

certificate of Chemical analysis does not contain the

certification that the packets, containing the liquid

alleged to be arrack, were sealed. Reference is only with CRL.A NO. 777 OF 2006

regard to the seal on the packet by which the 2 packets

containing arrack were covered.

25. There is no evidence to show that the specimen

impression of the seal affixed on the said packet was

forwarded to the Chemical Examiner. Copy of the

forwarding note, marked as Ext.P8, does not contain the

specimen impression of the seal used.

26. 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 Ext.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 Ext.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 CRL.A NO. 777 OF 2006

appellant".

27. In view of the fact that there is no evidence to

convince the court that the specimen impression of the

seal had been provided to the Chemical Examiner, no

evidentiary value can be given to Ext.P9 chemical

analysis report.

28. It has come out in evidence that the 2 packets

containing the liquid alleged to be arrack and treated as

samples remained in the custody of the property clerk of

the court, the official of the court who had taken the

packets as sample and the Police official who received

the same from the court and delivered to the Chemical

Examiner's laboratory. Prosecution failed to examine

these officials to establish that the packets allegedly

recovered from the possession of the accused were sent to

the laboratory in a tamper proof condition. The

inevitable effect of this omission is that the

prosecution failed to rule out the possibility of the CRL.A NO. 777 OF 2006

sample being changed or tampered with during the period-a

fact which had to be proved affirmatively by the

prosecution.

29. 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.

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

said to have been seized from the possession of the

accused. (see: Sathi v. State of Kerala [2007(1) KHC

778]).

31. In the instant case, the prosecution was unable

to establish the link connecting the accused with the CRL.A NO. 777 OF 2006

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.

32. The upshot of the above discussion is that the

conviction entered by the court below overlooking these

vital aspects of the matter cannot therefore be

sustained. The appellant 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