Kerala High Court

Bharathan, S/O Narayanan vs State Of Kerala, Represented on 8 July, 2021

         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. 2332 OF 2006
   AGAINST THE JUDGMENT IN SC 480/2002 OF THE ADDITIONAL
      SESSIONS JUDGE, (ABKARI), KOTTARAKKARA, KOLLAM
APPELLANT/ACCUSED:

         BHARATHAN, S/O NARAYANAN
         UNNI BHAVAN, THEVALAKKARA, PATHIRICKAL MURI,,
         PATHANAPURAM TALUK.

         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.



         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.2332 of 2006                  2




                                 K.BABU, J.
                       --------------------------------------
                        Crl.A No.2332 of 2006
                      ---------------------------------------
                  Dated this the 8th day of July, 2021

                               JUDGMENT

Aggrieved by the judgment dated 04-11-2006, passed by

the learned Additional Sessions Judge (Abkari), Kottarakkara in

S.C No.480/2002, 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 19-09-1999 at 12.45

p.m., the accused was found in possession of 4 litres of illicit

arrack for sale in a plastic can having a capacity of 5 litres at

Thevalakkara in Pathirikkal muri, Pathanapuram Village.

4. After completion of 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-III, Punalur. The case was

committed to the Sessions Court, Kollam from where it was

made over to the Additional Sessions Court (Abkari),

Kottarakkara. On appearance of the accused charges were

framed against him for the offences punishable under

Secs.55(a) and (i) of the Abkari Act. The accused pleaded not

guilty to the charges levelled against him and therefore, he

came to be tried by the trial court for the aforesaid offences.

5. The prosecution examined PW1 to PW4 and proved

Exts.P1 to P5 and MO1 and MO2.

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 55(a) of the Abkari Act and he

was convicted thereunder. The accused was acquitted of the

offence under Section 55(i) of the Abkari Act. The accused was

sentenced to undergo rigorous imprisonment for a period of

two years and to pay fine of Rs.1 Lakh for the offence under

Sec.55(a) of the Abkari Act.

7. Heard Sri.Santhosh P.Abraham, the learned counsel

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

Prosecutor.

8. The learned counsel for the appellant canvassed the

following grounds to challenge the judgment of conviction:

i) There is inordinate delay in the production of the properties 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 Chemical Examiner's Laboratory.

9. The learned Public Prosecutor, per contra, submitted

that the prosecution could well establish the charge against the

accused. He contended that sufficient materials are there to

establish the prosecution case.

10. 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

11. PW4, the Sub Inspector of Police, Pathanapuram,

detected the offence. He has given evidence that on 19.9.1999

while the police party led by him was on patrol duty, at 1 pm, on

getting reliable information that the accused was engaged in

the sale of arrack, they proceeded to the scene of occurrence at

Vettiayyam and found the accused in possession of the

contraband articles.

12. PW4 has given evidence that the can containing

illicit arrack in the possession of the accused was seized from

which he collected 150 ml of arrack in a bottle having a

capacity of 180 ml as sample. According to PW4, the

contraband articles were seized as per Ext.P1 seizure mahazar

and the accused was arrested as per Ext.P2 arrest memo. PW4

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

PW3, the Police Constable who had accompanied PW4,

supported the version of the prosecution regarding seizure,

arrest etc. PWs1 and 2, the independent witnesses, did not

support the prosecution.

13. The learned counsel for the appellant submitted that

though Ext.P4 property list was prepared on 19.9.1999, the

properties including the sample were produced before the

court only on 28.9.1999. PW4, the detecting officer failed to

give any explanation as to the delayed production of the

properties including the sample before the court. The

explanation of PW4 is that the properties were kept in his safe

custody which is no way a satisfactory explanation for the delay

in the production of the properties.

14. 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). 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)

15. 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

the 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.

16. The learned counsel for the appellant further

contended that the prosecution failed to establish that the

contraband substance allegedly recovered from the place of

occurrence eventually reached the hands of Public Analyst.

The learned counsel relied on the following circumstances in

support of his contention:

a) The detecting officer and the other

official witness who had accompanied PW4, have

not given evidence as to the nature and

description of the seal affixed on the bottle

containing the sample.

b) Ext.P1, seizure mahazar, the

contemporaneous document evidencing seizure,

does not contain any narration as to the nature

and description of the seal used.

c) The copy of the forwarding note,

wherein the specimen of the seal is to be affixed

and the name of the person, with whom the

sample bottle was forwarded, is to be mentioned,

has not been produced before the court.

17. PW4, the detecting officer and PW3, the Police

Constable, who had accompanied PW4 have 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 impression of the seal stated to have been

affixed on the bottle containing the sample. There is no

mention regarding the nature and description of the seal used

in Ext.P1 seizure mahazar. 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 v. State of Kerala and another (2020 KHC

5296), Krishnadas v. State of Kerala (2019 KHC 191).

18. The learned counsel for the appellant further

contended that the prosecution failed to adduce any evidence to

show that the specimen impression of the 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

sample. There is absolutely no evidence as to the nature and

description of the seal stated to have been affixed on the bottle

containing the sample by the detecting officer and that the

same had been provided to the Chemical Examiner. The copy of

the forwarding note, wherein the specimen of the seal is to be

affixed and the name of the official with whom the sample

bottle was entrusted for delivering the same to the Chemical

Examiner's laboratory is to be mentioned, has not been

produced and marked in this case. In Ramachandran v.

State of Kerala (2021(1) KLT 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."

19. 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 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".

20. 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.P5

chemical analysis report.

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