Kerala High Court
C.Kunhiraman vs Sub Inspector Of Police on 11 August, 2021
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. 835 OF 2007
AGAINST THE JUDGMENT IN SC 542/2005 OF ADDITIONAL SESSIONS
COURT (ADHOC), THALASSERY, KANNUR
APPELLANT/ACCUSES:
C.KUNHIRAMAN
S/O. KUNHAMBU, CHAPPLI HOUSE, VAYATHU AMSOM,
KALANKI, KARIMBALA COLONY.
BY ADV CIBI THOMAS
RESPONDENTS:
1 SUB INSPECTOR OF POLICE,
ULIKKAL.
2 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. M.C. ASHI
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A NO. 835 OF 2007 2
K.BABU, J.
=====================
Crl.A.No.835 of 2007
=====================
Dated this the 11th August, 2021
JUDGMENT
Challenge in this appeal is to the judgment dated 24.4.2007
in S.C.No.542/2005 of the Additional Sessions Court, Adhoc I,
Thalassery. The accused was convicted of the offences
punishable under Sections 55(a) and 55(g) of the Abkari Act by
the impugned judgment.
2. The prosecution case is that on 21.3.2004 at 3 pm the
accused was found distilling arrack on the rear side of the
courtyard of the residence of the accused. The Sub Inspector of
Police, Ulikkal Police Station detected the offence.
3. After completion of investigation, final report was
submitted against the accused for the offences punishable under
Sections 55(a) and 55(g) of the Abkari Act before the Judicial
First Class Magistrate Court, Mattannur. The case was
committed to the Sessions Court, Thalassery from where it was
made over to the Additional Sessions Court, Thalassery. On
appearance of the accused, charges were framed against him for
offences punishable under Sections 55(a) and 55(g) of the Abkari
Act. The accused pleaded not guilty and therefore, he came to
be tried by the trial court for the aforesaid offences.
4. The evidence for the prosecution consists of the oral
evidence of PWs 1 to 5 and Exts.P1 to P9.
5. 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 learned trial court, after
hearing the arguments addressed from both sides, found that the
accused is guilty of the offences punishable under Sections 55(a)
and 55(g) of the Abkari Act and he was convicted thereunder.
He was sentenced to undergo simple imprisonment for a term of
one month and to pay a fine of Rs.1,00,000/- under Section 55(g)
of the Abkari Act. No separate sentence was imposed under
Section 55(a) of the Abkari Act.
6. Heard Sri.Cibi Thomas, the learned counsel appearing
for the appellant/accused and Sri.M.C.Ashi, the learned Public
Prosecutor appearing for the respondent.
7. The learned counsel for the appellant canvassed the
following grounds to challenge the judgment of conviction:
a) The delay in the production of the sample
and other articles before the court has not been
satisfactorily explained.
b) The prosecution failed to establish that the
contraband substance allegedly recovered from the
place of occurrence eventually reached the hands of
the analyst in the Chemical Examiner's laboratory.
8. The learned Public Prosecutor, per contra, submitted
that the prosecution could well establish the charges against the
accused. He contended that sufficient materials are there to
establish the prosecution case.
9. 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
10. PW1, the Sub Inspector of Police, Ulikkal Police
Station gave evidence that on 21.3.2004 while he was on patrol
duty, on getting reliable information that the accused was
engaged in distilling of arrack in his house, the police party led
by him proceeded to there. PW1 found the accused in
possession of the contraband substance that includes 15 litres of
wash and 1½ litres of arrack in two bottles. PW1 seized the
contraband substance as per Ext.P3 seizure mahazar. The
accused was arrested from the spot.
11. PWs 2 and 3, the independent witnesses, did not
support the prosecution. PW4, the Police Constable who had
accompanied PW1 in the search and seizure, supported the case
of the prosecution. PW5 conducted investigation and submitted
final report.
12. The learned counsel for the appellant contended that
the delay in the production of the articles before the court has
not been satisfactorily explained by the prosecution. PW1,
admitted that the properties seized on 21.3.2004 reached the
court only on 26.3.2004. The explanation for the delay in the
production of the articles is that they were in his safe custody.
PW1 added that on the date of seizure itself, the properties were
forwarded to the court. But the properties were verified and
received in the court only on 26.3.2004. No material is available
to convince that the properties were produced before the court
on the date of seizure itself. The case of PW1 is that he had sent
the articles to the court. He was even unable to mention the
name of the official with whom the properties were forwarded to
the court. The explanation offered by the detecting officer is not
acceptable. This Court has no hesitation to hold that the
properties including the sample were produced before the court
only on 26.3.2004. 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:
"8(1). Itis 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)
13. The Division Bench held that production of the
properties 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. The unexplained delay in the
production of the properties would lead us to the conclusion that
tampering with the samples could not be ruled out.
14. The learned counsel for the appellant further
contended that the prosecution has not succeeded in
establishing that the contraband substance allegedly recovered
from the place of occurrence was actually subjected to analysis
in the laboratory. The learned counsel for the appellant relied
on the following aspects to substantiate his contentions:
i) The detecting officer has not given evidence
as to the nature and description of the seal
affixed on the bottle containing the sample.
ii) Ext.P3 seizure mahazar is silent about the
nature of the seal used.
iii) PWs 1 and 4, the official witnesses
examined to prove the incident proper, did not
testify as to the nature and description of the seal
affixed on the bottle containing the sample.
iv) Ext.P3 seizure mahazar does not contain
the nature of the seal used by the detecting
officer. There is nothing to convince the court
that the specimen impression of the seal had been
produced before the court at the time of
production of properties before the court.
15. 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. (See: Bhaskaran v. State
of Kerala and another (2020 KHC 5296), Krishnadas v.
State of Kerala (2019 KHC 191).
16. In the instant case, the detecting officer (PW1)
failed to give evidence regarding the nature of the seal
affixed on the bottle containing the sample. Ext.P3 seizure
mahazar does not contain the description of the seal used.
17. Ext.P5, the copy of the forwarding note, contains two
specimen seals. One is not at all legible. Ext.P5 was prepared
on 15.4.2004 and produced before the court on 17.4.2004. As
the specimen impression of the seal was not placed before the
court at the time of production of the sample, the official
concerned of the court or the learned Magistrate had no
opportunity to ascertain the genuineness of the sample produced
before the court.
18. Ext.P7, the certificate of chemical analysis would
show that three bottles containing the sample were received in
the laboratory on 28.4.2004. There is no convincing evidence as
to the date on which the samples were forwarded to the
Chemical Examiner's laboratory. The name of the official with
whom the samples were forwarded is not mentioned in any of
the contemporaneous documents.
19. It has come out in evidence that the detecting officer
was unable to ascertain the name of the police official with
whom the bottles containing the sample were forwarded to the
court. His evidence was in the line that he had sent the samples
to the court immediately after the seizure. But the sample
reached the court only on 26.3.2004. The necessary inference
from the evidence of the detecting officer is that the custody of
the bottles containing the sample during the interregnum
remains unexplained. It is the admitted case of the prosecution
that the bottles containing the sample changed several hands
before they reached the laboratory. The samples remained in
the custody of the police official who produced them in the court,
the property clerk of the court and the police official who
delivered them in the laboratory. These witnesses were not
examined by the prosecution. The inevitable consequence of
this omission is that the prosecution failed to rule out the
possibility of the samples being changed or tampered with.
(See: State of Rajasthan v. Daulat Ram [AIR(1980)SC
1314].
20. In view of the fact that there is no evidence to
convince the court that the samples were sent to the laboratory
in a tamper-proof condition, no sanctity can be attached to
Ext.P7 certificate of chemical analysis.
21. 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.
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 which was drawn from the bulk quantity of the
alleged contraband substance said to have been seized from the
possession of the accused. (vide: State of Rajasthan v. Daulat
Ram [AIR(1980)SC 1314].
23. 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.
24. 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/accused is therefore not found guilty of the offences
punishable under Sections 55(a) and 55(g) of the Abkari Act.
In the result,
(i) the appeal is allowed.
(ii) The judgment of conviction and sentence passed
in S.C.No.542/2005 by the Additional Sessions Judge,
Thalassery is set aside.
(iii) The accused is acquitted of the offences
punishable under Sections 55(a) and 55(g) of the
Abkari Act.
(iv) The accused is set at liberty.
Sd/-
K. BABU
JUDGE
ab
