Santhosh, S/O. Mohanan vs State Of Kerala
2021 Latest Caselaw 13863 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
      TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                          CRL.A.NO.623 OF 2006
  AGAINST THE JUDGMENT IN S.C.NO.83/2002 OF ADDITIONAL SESSIONS
                   COURT (ADHOC)-II, KALPETTA

APPELLANT/ACCUSED:

          SANTHOSH, S/O.MOHANAN,
          KAMBAYIL HOUSE, THALAYAZHAM
          VAIKOM.

          BY ADV SRI.NIREESH MATHEW


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,ERNAKULAM.



          SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION            ON
06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.623/2006                                   2



                                      JUDGMENT

Dated this the 6th day of July, 2021

Aggrieved by the judgment dated 18.2.2006, passed by the

Additional Sessions Court (Adhoc) II, Kalpetta in Sessions Case

No.83 of 2002, the accused has preferred this appeal.

2. The trial court convicted the accused for the offence

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

3. The prosecution case is that on 11.4.2000, at about 1.30

P.M., the accused was found transporting 12 bottles, each containing

750 ml. of 'New Janatha Whisky' in a KSRTC bus bearing

registration No.KL-15/3461 (TS-371) at Poonkuzhi on the Mysore-

Bathery Main Road. The offence was detected by the Excise

Inspector, Sulthan Bathery Excise Range. After completion of

investigation, final report was submitted against the accused by PW5,

Excise Inspector, Sulthan Bathery, for the offence under Section

55(a) of the Abkari Act before the Judicial First Class Magistrate

Court I, Sulthan Bathery. The case was committed to the Sessions

Court, Kalpetta from where it was made over to the Additional

Sessions Court (Adhoc) II, Kalpetta.

4. On appearance of the accused, charge was framed

against him for the abovesaid offence. The accused pleaded not

guilty and therefore, he came to be tried by the trial court for the

offence under Section 55(a) of the Abkari Act.

5. The prosecution examined PWs 1 to 5 and proved

Exhibits P1 to P9 and MO1 series.

6. After closure of the evidence on behalf of the prosecution,

the statement of the accused under Section 313 Cr.P.C. was

recorded. 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 upon his defence and to adduce evidence, if

any, that he may have in support thereof. The trial court, after

hearing the arguments addressed from both sides, passed the

impugned judgment.

7. Heard the learned counsel for the appellant Sri.Nireesh

Mathew and Sri.M.S.Breez, the learned Senior Public Prosecutor.

8. The learned counsel for the appellant submitted as

follows :

(a) The unexplained delay in the production of the

contraband substance before the court is sufficient to conclude that

the prosecution failed to rule out tampering with the sample.

(b) The prosecution miserably failed to establish that the

contraband substance allegedly recovered from the possession of

the accused finally reached the hands of the Analyst.

9. The learned Public Prosecutor submitted that the

prosecution could well establish the charge against the accused.

10. The only point that arises for consideration is whether the

judgment of conviction and sentence passed by the trial court

requires interference.

The point :

11. The Excise Inspector, Sulthan Bathery (PW1) detected

the offence. PW1 has given evidence that on 11.4.2000, the Excise

Party led by him stopped the KSRTC bus bearing registration No.TS-

371, near Ponkuzhi Ramaswamy temple and conducted search

inside the bus and found the accused possessing 12 bottles each

containing 750 ml. of New Janatha Whisky. PW1 seized the bottles

containing the contraband substance and arrested the accused.

PW1 deposed that he opened one of the bottles and after

ascertaining that it contained foreign liquor, sealed the same. PW1

prepared Exhibit P2 seizure mahazar. The remaining bottles and the

bottle containing sample, seized from the place of occurrence, and

the accused were produced before PW4, the Range Inspector,

Sulthan Bathery.

12. PW2, an Excise Guard, who had accompanied PW1 in

the search and seizure, has given evidence in support of the version

given by PW1. PW3, the conductor of the bus, gave evidence that he

had witnessed the seizure of the contraband substance from the bus.

PW4, the Range Inspector, produced the accused before the court on

11.4.2000 itself. He produced the articles seized from the place of

occurrence only on 13.4.2000. PW5, the Excise Inspector, Sulthan

Bathery, conducted investigation and submitted final report on

31.10.2001 before the Magistrate Court concerned.

13. The learned counsel for the appellant submitted that the

delayed production of the articles allegedly seized from the place of

occurrence has not been satisfactorily explained. PW1 has given

evidence that he had produced the accused and the articles seized

from his possession along with the sample on 11.4.2000 before

PW4. The accused was produced before the court on 11.4.2000 by

PW4 himself. He had submitted Exhibit P2, seizure mahazar, before

the court on 11.4.2000 itself. But, he failed to produce the properties

including the sample on 11.4.2000. He produced the sample and the

other articles only on 13.4.2000. His explanation was that he was

busy with other duties and that the articles were in his safe custody.

On the question of delayed production of the properties in Ravi v.

State of Kerala & another (2011 (3) KHC 121), a Division Bench of

this Court held thus:

"8. (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)"

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, PW4, the Range Inspector, Sulthan

Bathery, who received the properties, including the sample, on

11.4.2000, failed to produce the same on that day before the court

though he produced the accused along with other contemparaneous

documents. The unexplained delay in the production of the

contraband substance including the sample before the court would

lead to the conclusion that tampering with the sample could not be

ruled out. On this ground alone, the prosecution must fail in

establishing the case against the accused.

14. The learned counsel for the appellant further contended

that PW1, the detecting officer, who had drawn the sample, has not

given evidence as to the nature and description of the seal affixed on

the bottle containing the sample. It is also contended that Exhibit

P2, seizure mahazar, a contemporaneous document prepared at the

scene, is silent about the nature and description of the seal used.

15. This Court in Bhaskaran v. State of Kerala and another

[2020 KHC 5296] has dealt with a similar fact situation and held

thus :-

"21. 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. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). 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, is 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 (See Rajamma v. State of Kerala : 2014(1) KLT 506)" (Emphasis supplied)

16. This Court in Krishnadas v. State of Kerala (2019 KHC

191) in paragraph 7, held thus:

"7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty."

(Emphasis supplied)

17. In the instant case, none of the official witnesses have

given evidence as to the nature and description of the seal affixed on

the sample. Of course, Exhibit P7, forwarding note contains the

specimen of the seal stated to have been affixed on the sample. This

Court is in the dark as to when Exhibit P7, copy of the forwarding

note, was produced before the court. The learned Magistrate, who

counter signed in Exhibit P7, forwarding note, has not written the

date on which he made his initial.

18. The resultant conclusion is that the non-mentioning of the

nature and description of the seal in Exhibit P2, seizure mahazar and

the lack of evidence from the part of the official witnesses as to the

nature of the seal used are serious infirmities affecting the

prosecution case.

19. In view of the above mentioned infirmities, the

prosecution ought to have examined the thondi clerk and the Excise

Guard deputed to hand over the sample to the Chemical Examiner's

laboratory to establish tamper proof despatch of the sample.

20. This Court is in the dark as to the date on which the

sample was received by the Excise Guard concerned from the court

for delivering the same to the Chemical Examiner's laboratory.

Exhibit P8, the certificate of chemical analysis, shows that the letter

of the Magistrate concerned forwarding the sample to the Chemical

Examiner's laboratory is dated 'nil'. This would also lead to a

conclusion that tampering with the sample could not be ruled out.

21. It is well established 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 possessed by the accused.

This is more so when the sample might have changed several hands

before it reached the hands of the Chemical Examiner {vide : State

of Rajasthan v. Daulat Ram (AIR 1980 SC 1314), Valsala v. State

of Kerala (1993 KHC 798), Sathi v. State of Kerala [2007(1) KHC

778]}. 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 the contraband substance cannot be conclusive

proof by itself and the sample seized and that tested have to be co-

related.

22. In the instant case, I am of the considered view that the

prosecution failed to establish the link evidence to connect the

contraband substance with the accused.

23. The court below has ignored these vital aspects. The

resultant conclusion is that the conviction and sentence passed

against the accused cannot be sustained.

In the result, the appeal is allowed. The accused is acquitted of

the charge under Section 55(a) of the Abkari Act. He is set at liberty.

Sd/-

K.BABU, JUDGE csl