Thottathan Manoharan vs State Of Kerala
2021 Latest Caselaw 14181 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE K. BABU
      THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                       CRL.A NO. 1857 OF 2006
 AGAINST THE ORDER/JUDGMENT IN SC 980/2004 OF ADDITIONAL DISTRICT
                  COURT (ADHOC), THALASSERY, KANNUR
APPELLANT/ACCUSED:

            THOTTATHAN MANOHARAN
            S/O.KUNHAPPA, KEEZHALLUR AMSOM, DESOM,,
            THALASSERY TALUK, KANNUR.
            BY ADVS.
            SRI.GRASHIOUS KURIAKOSE (SR.)
            SRI.PRANOY K.KOTTARAM


RESPONDENT/COMPLAINANT:

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

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


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A No.1857 of 2006

                                           2

                                      K.BABU, J.
                         --------------------------------------
                        Criminal Appeal No.1857 of 2006
                         ---------------------------------------
                         Dated this the 8th day of July, 2021

                                    JUDGMENT

Aggrieved by the judgment dated 01-09-2006, passed by the

learned Additional Sessions Judge (Adhoc-I), Thalassery in S.C

No.980/2004, the accused has preferred this appeal.

2. The trial court convicted the accused for the offence

punishable under Section 58 of the Abkari Act.

3. The prosecution case is that on 12-11-2000 at 5.30 p.m, the

accused was found in possession of 5 litres of illicit arrack at

Keezhalloor in Kannur district.

4. After completion of investigation, final report was

submitted against the accused for the offence punishable under

Section 58 of the Abkari Act before the Judicial Magistrate of First

Class, Mattannur. The case was committed to the Sessions Court,

Thalassery from where it was made over to the Additional Sessions

Court (Adhoc-I), Thalassery. On appearance of the accused charge Crl.A No.1857 of 2006

was framed against him for the offence punishable under Section 58

of the Kerala Abkari Act. He pleaded not guilty to the charge

levelled against him and therefore, he came to be tried by the trial

court for the aforesaid offence.

5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to

P6 and MO1.

6. 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 evidence, if any, he may have in support thereof. The

trial court, after hearing arguments addressed from both sides,

found that the accused is guilty of offence under Section 58 of the

Abkari Act and he was convicted thereunder. The accused was

sentenced to undergo simple imprisonment for a period of two

months and to pay a fine of Rs.1 Lakh.

7. Heard Sri.Pranoy.K.Kottaram, learned counsel appearing Crl.A No.1857 of 2006

for the appellant/accused and Sri.M.S.Breez, learned Senior Public

Prosecutor appearing for the respondent.

8. The learned counsel for the appellant contended as

follows:

(i) There is inordinate delay in the production of the

property before the court.

(ii) The prosecution failed to establish that the articles

said to have been seized from the place of

occurrence eventually reached the hands of the

Analyst at the Chemical Examiner's laboratory.

9. The learned Public Prosecutor, per contra, submitted that

the prosecution could well establish the charge against the accused.

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

conviction entered and the sentence passed against the

accused/appellant are sustainable or not.

The Point

11. PW1, the Sub Inspector of Police, Mattannoor, detected the

offence. He has given evidence that on 12-11-2000 at 4.30 p.m, while Crl.A No.1857 of 2006

he was on patrol duty, on getting reliable information that the

accused was engaged in sale of illicit arrack, the police team

reached the place of occurrence and found the accused in

possession of the contraband substance. PW1 has given evidence

that he seized 5 litres of arrack in a jerry can having a capacity of 10

litres from the possession of the accused. According to PW1, the

accused was arrested at 5.30 p.m from the spot as per Ext.P2 arrest

memo. He further gave evidence that 375 ml of arrack was taken as

sample in a bottle and the same was sealed and labelled. PW1

registered Ext.P3 FIR on the basis of Ext.P1 seizure mahazar.

12. PWs 2 and 3, the independent witnesses examined to

prove the incident proper, did not support the prosecution case.

13. PW4, Additional S.I of Police, Mattannoor Police Station

conducted investigation.

14. PW1, the detecting officer, has given evidence that some

days after the detection and seizure, the properties were forwarded

to the court. He further stated that as per the available records the

properties seized reached the court on 22-11-2000. He failed to give Crl.A No.1857 of 2006

any evidence as to the custody of the articles including the bottle

containing the sample during the interregnum. He has no

explanation for the delay in the production of properties before the

court.

15. 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. We, therefore, answer the reference as follows:

1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) CrPC 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."

16. The Division Bench held that the 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

property. The unexplained delay in the production of properties Crl.A No.1857 of 2006

would lead to the conclusion that tampering with the samples

could not be ruled out.

17. The learned counsel for the appellant/accused further

contended that the prosecution miserably failed to establish that

the contraband substance allegedly recovered from the place of

occurrence eventually reached the Chemical Examiner's laboratory.

He relied on the following circumstances to substantiate his

contentions:

(a) PW1, the detecting officer, has not given evidence as to

the custody of the properties including the bottles

containing the sample during the period from 12-11-

2000 to 22-11-2000.

(b) The detecting officer has not given evidence as to the

nature and description of the seal affixed on the bottle

containing the sample.

(c) Ext.P1, Seizure mahazar, the contemporaneous

document evidencing seizure, does not contain any

narration as to the nature and description of the seal Crl.A No.1857 of 2006

used.

(d) Ext.P5, forwarding note, is silent as to the name of the

official through whom the sample was forwarded to the

Chemical Examiner's laboratory.

18. I have gone through the depositions of the witnesses and

Ext.P1 seizure mahazar. PW1, the detecting officer, has not given

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

bottle containing the sample. Ext.P1, seizure mahazar, does not

contain the specimen of the seal stated to have been affixed on the

sample. 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 [Vide: Bhaskaran K. v. State of

Kerala and another (2020 KHC 5296), Krishnadas v. State of

Kerala (2019 KHC 191)]

19. PW1, the detecting officer, as discussed above, has failed

to give evidence as to the custody of the bottle containing the

sample for the period from 12-11-2000 to 22-11-2000. He failed to Crl.A No.1857 of 2006

give evidence as to the person with whom the sample bottle was

forwarded to the court.

20. Exhibit P5, copy of the forwarding note, is silent with

regard to the name of the person with whom the sample was sent

for analysis.

21. Exhibit P6, certificate of chemical analysis would show

that the sample was received in the laboratory through a police

constable No.3328. The space meant for writing the name of the

police official with whom the sample was sent remained unfilled in

Ext.P5, copy of the forwarding note. The learned Magistrate has not

written the date on which he affixed the signature in Ext.P5. While

considering a similar fact situation in Kumaran v. State of Kerala

[2016 (4) KLT 718] this Court held thus:

"7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication Crl.A No.1857 of 2006

that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."

22. Exhibit P5, forwarding note, is silent with regard to the

date on which the sample was sent to the laboratory. Ext.P6,

certificate of chemical analysis, would show that the sample was

forwarded from the Judicial First Class Magistrate Court,

Mattannur as per letter dated 29-05-2001. Exhibit P6 shows that the

sample reached the laboratory on 28-08-2001. There was no

explanation as to the custody of the sample during the period from Crl.A No.1857 of 2006

29-05-2001 to 28-08-2001. The prosecution ought to have examined

the thodi clerk of the court or the police official who received the

sample from the court and handed over the same to the Chemical

Examiner's laboratory to prove the tamper-proof despatch of the

sample to the laboratory.

23. In view of the above mentioned infirmities this Court

comes to the conclusion that the prosecution failed to establish the

tamper-proof despatch of the sample to the laboratory.

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 sample tested was contraband substance cannot be conclusive

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

related.

25. 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 place of occurrence Crl.A No.1857 of 2006

(Vide: State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314],

Sasidharan v. State of Kerala [2007 (1) KHC 275]. 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 as discussed above.

26. The conviction entered by the court below overlooking

these vital aspects of the matter cannot therefore be sustained. The

appellant/accused is therefore not guilty of the offence punishable

under Section 58 of the Abkari Act. He is acquitted of the charge

levelled against him. He is set at liberty.

The appeal is allowed as above.

Sd/-

K.BABU, JUDGE KAS