Prasad vs State Of Kerala
2021 Latest Caselaw 17524 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
         THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                          CRL.A NO. 1311 OF 2007
AGAINST THE JUDGMENT DATED 12-07-2007 IN SC 235/2002 OF SPECIAL COURT
               FOR ABKARI ACT CASES, KOTTARAKKARA, KOLLAM


APPELLANTS/ACCUSEDS:

     1       PRASAD,
             S/O. VASU, CHATHUPPIL VEEDU, THEVALAKARA, PATHIRICKAL
             MURI, PATHANAPURAM VILLAGE.

     2       GANGADHARAN,
             S/O.CHANDRAN, SFCK QUARTERS
             THEVALAKARA, PATHIRICKAL MURI, PATHANAPURAM VILLAGE.

             BY ADVS.
             S.K.DEVI
             SANTHOSH P.ABRAHAM



RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
             KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE,
             PATHANAPURAM.

             BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

             SRI.SANGEETH RAJ (GP)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appal No.1311/2007                   -2-

                                   JUDGMENT

The appellants are the accused in S.C. No.235/2002 on the file of the Additional

Sessions Judge (Abkari Case), Kottarakkara. The gist of the prosecution allegation is

that the 1st accused was in possession for sale of 30 litres of arrack in a container

having a capacity of 35 litres and that the 2 nd accused was in possession of a glass and

they were detected by the Sub Inspector of Police, Pathanapuram at 1.30 p.m. on 09-

08-1999. The appellants/accused were arrested and the contraband articles were

seized. Following the investigation of the case a final report was filed before the

Judicial First Class Magistrate Court-III, Punalur which was committed to the Sessions

Court, Kollam for trial. The trial was conducted in the Additional Sessions Court

(Abkari Cases), Kottarakkara. The appellants pleaded not guilty and following trial

both the appellants/accused were found guilty of having committed the offence

punishable under Section 55 (a) (i) of the Abkari Act.

2. Before this court it is the specific contention of Sri. Santhosh P. Abraham,

the learned counsel appearing for the appellants/accused that they are entitled to an

acquittal on the sole ground that there was considerable and unexplained delay in the

production of the seized contraband before the court. He refers to Ext.P5 , which is the

list of properties sent to the learned Magistrate in Crime No.253/2002 which includes

the arrack seized from the possession of the 1 st accused. A perusal of Ext.P5 shows that

there is an endorsement of the Sub Inspector of Police, Pathanamthitta that item No.1 ,

'may be returned for keep under safe custody'. The officer who was examined as PW4

states that the contraband article (arrack) was returned for safe custody on account of

lack of space in the court premises for its retention. However, the said statement of

PW4 is not corroborated in any manner. None of the court officials have been

examined by the prosecution to establish this fact. A Division Bench of this court in

Ravi v. State of Kerala (2011 (3) KLT 353) held as follows;

"13. It is difficult for us to believe that PW4 had produced the properties on 25.08.1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala (2007 (1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant."

To the same effect the view taken by this court in the judgment dated 24-09-2020 in

Crl. Appeal No.2500/2007 and in Crl. Appeal No.2332/2006 dated 08-07-2021. In the

light of the law laid down in Ravi (surpa) I am of the view that the appellants/accused

are entitled to an acquittal as the prosecution has failed to establish that the sample

analysed was the same article which was seized from the appellants/accused. In the

facts of the present case the contraband article was seized on 09-08-1999 and was

produced in court only on 01-09-1999, after a delay of about 22 days.

In the result, this appeal is allowed. The conviction and sentence imposed on the

appellants/accused in S.C. No.235/2002 on the files of the Additional Sessions (Abkari

Cases), Kottarakkara is set aside and the accused are acquitted.

Sd/-

GOPINATH P.

JUDGE

AMG