Kerala High Court

Vijayan Pillai vs State Of Kerala on 7 July, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
  WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                      CRL.A NO. 1851 OF 2006
  AGAINST THE ORDER/JUDGMENT IN SC 166/2002 OF ADDITIONAL
    SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),
                              KOTTARAKKARA
APPELLANT/S:

         VIJAYAN PILLAI
         S/O VASUDEVAN PILLAI, KUZHUVELIL VEEDU, NEAR
         PANCHAYAT OFFICE, VETTIKAVALA MURI AND VILLAGE.

         BY ADV ALEXANDER GEORGE



RESPONDENT/S:

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

    2    THE SUB INSPECTOR OF POLICE
         KOTTARAKARA POLICE STATION, KOLLAM DIST.




OTHER PRESENT:

         SRI. M.S. BREEZ (SR.P.P)




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
07.07.2021,     THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A No.1851/2006


                             -2-



                      K.BABU, J.
             =========================
                 Crl.A No.1851/2006
             ==========================
          Dated this the 7th day of July, 2021

                           JUDGMENT

Aggrieved by the judgment dated 7.8.2006,

passed by the learned Additional Sessions

Judge (Abkari Act cases), Kottarakkara, in

S.C.No.166/2002, the accused has preferred

this appeal.

2. The trial court convicted the accused

for the offences punishable under Sections

55(a) and 55(i) of the Abkari Act.

3. The prosecution case is that on

23.10.1999 at 6.15 p.m., the accused was in

possession of two liters of illicit arrack

in a jerry can having a capacity of 2½ Crl.A No.1851/2006

litres, for sale, near the pan shop owned by

one Parameswaran Pillai, near the main gate

of Vettikkaval temple.

      4.    After        completion                  of        the

investigation,         final         report    was    submitted

against       the     accused          for     the        offences

punishable under Sections 55(a) and 55(i) of

the Abkari Act, before the Judicial

Magistrate of First Class-I, Kottarakkara.

The case was committed to the Sessions

Court, Kollam from where it was made over to

the Additional Sessions Court (Abkari Act

cases), Kottarakkara.

5. On appearance of the accused charges

were framed against him for the offences

punishable under Sections 55(a) and 55(i) of Crl.A No.1851/2006

the Abkari Act. The accused pleaded not

guilty and therefore, he came to be tried by

the learned Additional Sessions Judge for

the aforesaid offences.

6. The prosecution examined PWs 1 to 4

and proved Exts.P1 to P6 and MOs1 to 3. On

the side of the defence, DW1 was examined

and Ext.D1 was marked.

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 is evidence

against the accused and hence he was called

upon to enter on his defence and to adduce Crl.A No.1851/2006

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 offences

under Sections 55(a) and 55(i) of the Abkari

Act and he was convicted thereunder. He was

sentenced to undergo simple imprisonment for

a term of two years each and to pay a fine

of Rs.1,00,000/- each under Sections 55(a)

and 55(i) of the Abkari Act.

8. Heard Sri.Alexander George, the

learned counsel appearing for the accused

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

Prosecutor appearing for the respondents.

9. The learned counsel for the appellant

raised the following grounds to challenge Crl.A No.1851/2006

the impugned judgment:

a) There is inordinate delay in

producing the properties before the

court.

         b)   The      prosecution                failed   to

    establish          that            the        contraband

    substance        said   to         have   been    seized

    from   the       possession          of   the    accused

ultimately reached the hands of the

Public Analyst at the Chemical

Examiner's laboratory.

         c)   There         is         no     satisfactory

    explanation         for            the        delay    in

analysing the sample at the Chemical

Examiner's laboratory.

10. The learned Public Prosecutor, per Crl.A No.1851/2006

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 Inspector of Police,

Kottarakkara Police Station, detected the

offence. He gave evidence that on 23.10.99

in the evening, while he was on patrol duty,

at about 6.15 p.m., the accused was found in

possession of two litres of illicit arrack

in a jerry can. The accused had also

possessed a drinking glass. PW3 collected Crl.A No.1851/2006

150 ml each in two bottles as sample from

the arrack seized. PW3 arrested the accused

from the scene. PW3 prepared Ext.P5 seizure

mahazar.

13. PW1, the Police Constable who had

accompanied PW3, supported the prosecution

case. PW2 the Assistant Sub Inspector

attached to Kottarakkara Police Station was

entrusted with the accused, the contraband

articles and the other contemporaneous

records prepared at the scene by PW3. PW2

registered Ext.P1 FIR. PW2 has given

evidence that the contraband articles seized

from the possession of the accused were kept

in the Police Station and were produced

before the court on 23.1199 as per Ext.P3 Crl.A No.1851/2006

property list. PW2 produced currency notes

seized from the possession of the accused on

27.10.1999 as per Ext.P4. PW4 the Sub

Inspector of Police, Kottarakkara Police

Station conducted investigation.

14. The learned counsel for the accused

submitted that the contraband articles

allegedly seized on 23.10.1999 were produced

before the court only on 23.11.1999. PW2,

the Assistant Sub Inspector, Kottarakkara

Police Station deposed that the properties

including the sample bottles were kept in

the police station till 23.11.1999. He

failed to give any explanation as to the

delay in the production of the properties Crl.A No.1851/2006

before the court. There is no satisfactory

explanation for the delayed production of

the properties. The learned Additional

Sessions Judge recorded the finding that the

contraband articles were produced before the

court on 27.10.1999 without delay. This

finding of the learned Sessions Judge is

based on Ext.P4 property list, by which

three currency notes allegedly seized from

the possession of the accused were produced

before the court. The learned Sessions

Judge ignored Ext.P3 property list, by which

the sample bottles and the residue of the

arrack allegedly seized from the possession

of the accused were produced before the

court on 23.11.99 and the oral evidence of Crl.A No.1851/2006

PW2 to the effect that the contraband

articles were produced before the court only

on 23.11.1999.

15. On the question of delay in

production of the properties, the Division

Bench of this Court in Ravi v. State of

Kerala & another (2011(3) KHC 121) held thus:

"8. We therefore, answer the reference as follows:

(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) Crl.A No.1851/2006

16. 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.

17. The learned counsel for the

appellant further contended that the

prosecution miserably failed to establish

that the contraband substance, allegedly

recovered from the possession of the Crl.A No.1851/2006

accused, ultimately reached the Chemical

Examiner's laboratory. The learned counsel

relied on the following circumstances to

substantiate his contentions:

i. The official witnesses have not given

evidence as to the nature and description

of the seal affixed on the sample

bottles.

ii. Ext.P5, seizure mahazar, the

contemporaneous document evidencing

seizure, does not contain any narration

as to the nature and description of the

seal used.

iii. The copy of the forwarding note,

which usually contains the specimen seal,

has not been produced before the court. Crl.A No.1851/2006

18. I have gone through the depositions

of the witnesses and Ext.P5 mahazar. The

official witnesses have not given evidence

as to the nature and description of the seal

affixed on the bottle containing the sample.

Ext.P5, seizure mahazar, does not contain

the specimen of the seal stated to have been

affixed on the bottles containing sample.

19. In Bhaskaran v. State of Kerala and

another (2020 KHC 5296), while considering

a case in which the nature of the seal used

was not mentioned in the seizure mahazar and

the detecting officer failed to give

evidence as to the nature of the seal, this

Court held thus:

"21. The detecting officer, who has drawn the sample, has to give evidence as Crl.A No.1851/2006

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 Crl.A No.1851/2006

hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)" (Emphasis supplied)

20. In Krishnadas v. State of Kerala

(2019 KHC 191) this Court 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)

21. The learned counsel further contended Crl.A No.1851/2006

that there is nothing to show that specimen

seal was provided to the chemical examiner

for verification and to ensure that the

sample seal so provided was tallied with the

seal affixed on the bottles containing the

sample. There is absolutely no evidence as

to the nature and description of the seal

affixed on the bottles and that the same has

been provided to the Chemical Examiner. The

copy of the forwarding note, which contains the

specimen of the seal used and the name of the

official with whom the sample bottle was

entrusted for delivering the same to the

Chemical Examiner's laboratory, has not been

produced and marked in this case. In

Ramachandran v. State of Kerala (2021(1) KLT Crl.A No.1851/2006

793) while dealing with a case in which

forwarding note was not produced and marked,

this Court held thus:

"Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt."

22. 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 Crl.A No.1851/2006

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 appellant".

23. In view of the fact that there is no

evidence to convince the court that the

specimen seal or the specimen impression of

the seal has been provided to the Chemical

Examiner, no evidentiary value can be given

to Ext.P6 chemical analysis report.

24. 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 Crl.A No.1851/2006

sample tested was contraband substance

cannot be conclusive proof by itself. The

sample seized and that tested have to be co-