Ponnayyan Sugathan vs State Of Kerala
2021 Latest Caselaw 14380 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                    THE HONOURABLE MR.JUSTICE K. BABU
       TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                          CRL.A NO. 961 OF 2008
  AGAINST THE JUDGMENT DATED 26.03.2008 IN SC.NO.616/2003 OF
  ADDITIONAL SESSIONS COURT (ADHOC-III), THALASSERY, KANNUR
APPELLANT/ACCUSED:

             PONNAYYAN SUGATHAN
             S/O.PONNAYYAN, PALLICHADATH HOUSE, VADAKKANCHERRY
             AMSOM, PANAMBALLI, KUNDUKAD P.O., TRISSUR, THRISSUR
             DISTRICT.

             BY ADV SRI.R.SURENDRAN



RESPONDENT/COMPLAINANT:

             STATE OF KERALA,
             REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
             KERALA,, ERNAKULAM, KOCHI-31.

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


THIS     CRIMINAL    APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.961 of 2008

                                 2

                        K. BABU J.
            ------------------------------------
                    Crl.A.No.961 of 2008
            ------------------------------------
               Dated this the 13th   day of July, 2021

                       J U D G M E N T

Aggrieved by the judgment dated 26.03.2008, passed by

the learned Additional Sessions Judge (Adhoc-III),

Thalassery in S.C.No.616/2003, 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 08.12.2001 at

about 06.15 p.m., the accused was found in possession of

9 bottles, each containing 750 ml of IMFL of the brand

'Delight XXX Rum' and 30 bottles, each containing 180 ml

of IMFL of the brand 'New Janatha Brandy' at New Bus

Stand, Thalassery.

4. Final report was submitted against the accused

for the offence punishable under Section 55(a) of the

Abkari Act before the Judicial First Class Magistrate

Court, Thalassery.

Crl.A.No.961 of 2008

5. The case was committed to the Sessions Court,

Thalassery from where it was made over to the Additional

Sessions Court (Adhoc-III), Thalassery. On appearance of

the accused charge was framed against him for the offence

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

accused pleaded not guilty and therefore, he came to be

tried by the trial court for the aforesaid offence.

6. The evidence for the prosecution consists of the

oral evidence of PWs 1 to 3 and Exts.P1 to P7 and MOs.1

to 3.

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

The learned trial court, after hearing arguments

addressed from both sides, found that the accused was

guilty of offence under Sections 58 of the Abkari Act and Crl.A.No.961 of 2008

he was convicted thereunder. The accused was sentenced to

undergo rigorous imprisonment for a period of six months

and to pay a fine of Rs.1,00,000/-.

8. Heard Sri.R.Surendran, the learned counsel

appearing for the appellant/accused and Sri.M.S.Breez,

the learned Senior Public Prosecutor appearing for the

respondent.

9. The learned counsel for the appellant canvassed

the following grounds to challenge the judgment of

conviction:

(a) Prosecution has not satisfactorily explained the

delay in production of the properties before the

court.

(b) The prosecution failed to establish that the

articles said to have been seized from the place

of occurrence ultimately reached the Chemical

Examiner's laboratory.

(c) There is no satisfactory explanation for the

delay in the analysis of the sample at the

Chemical Examiner's laboratory.

Crl.A.No.961 of 2008

10. 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.

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. PW1, the Additional Sub Inspector of Police,

Thalassery Police Station, detected the offence. PW1 has

given evidence that on 08.12.2001 at about 6.15 p.m., the

accused was found in possession of the contraband

articles at New Bus Stand, Thalassery. PW1 seized the

contraband substance in the possession of the accused as

per Ext.P2 seizure mahazar. The accused was arrested from

the spot by PW1. He had taken 2 bottles from the articles

seized from the possession of the accused as sample and

sealed the same.

13. PW3, an independent witness, did not support the

prosecution case. PW2, the Additional Sub Inspector of Crl.A.No.961 of 2008

Police, Thalassery Police Station conducted

investigation and submitted the final report.

14. The learned counsel for the appellant/accused

submitted that the delay in production of the articles

allegedly seized from the possession of the accused has

not been satisfactorily explained by the prosecution.

Ext.P4, the property list, shows that the articles

allegedly seized from the place of occurrence were

produced before the Court only on 12.12.2001. PW1, the

detecting officer, has not offered any explanation for

the delay in production of the properties before the

Court.

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:

"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 Crl.A.No.961 of 2008

production of the property." (Emphasis supplied)

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 failed to establish that

the contraband substance, allegedly recovered from the

place of occurrence, eventually reached the Chemical

Examiner's laboratory.

18. The learned counsel relied on the following

circumstances to substantiate his contentions:

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

as to the nature and description of the seal

affixed on the bottle containing the sample.

Crl.A.No.961 of 2008

(b) Ext.P2, seizure mahazar, the contemporaneous

document evidencing seizure, does not contain any

narration as to the nature and description of the

seal affixed on the bottle containing the sample.

(c) The copy of the forwarding note, (Ext.P6) is

silent regarding the specimen seal.

(d) Ext.P6, copy of the forwarding note, is also

silent regarding the name of the Police official

with whom the sample was sent to the Chemical

Examiner's laboratory.

19. I have gone through the deposition of PW1, the

detecting officer, and Ext.P2 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.P2, seizure mahazar, is also

silent regarding the specimen of the seal stated to have

been affixed on the bottle containing the sample.

20. 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 Crl.A.No.961 of 2008

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. [vide: Bhaskaran v. State of

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

of Kerala (2019 KHC 191)]

21. The learned counsel for the appellant/accused

further contended that there is nothing to show that the

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 sample

bottle. There is absolutely no evidence as to the nature

and description of the seal stated to have been used by

the detecting officer and that the same has been provided

to the Chemical Examiner.

22. While dealing with a fact situation in which

there was no evidence to convince the court that the

sample seal or specimen impression of the seal has been Crl.A.No.961 of 2008

provided to the Chemical Examiner 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".

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.P7

chemical analysis report.

24. Ext.P7, certificate of chemical analysis, shows

that the sample reached the laboratory on 24.12.2001.

But the same was analysed only on 15.02.2003. The learned Crl.A.No.961 of 2008

counsel for the appellant contended that the delay in

analysis of the sample, which has not been satisfactorily

explained is also fatal to the prosecution. While

dealing with the question of delay in analysis of the

sample this Court in Krishnadas v. State of Kerala (2019

KHC 191) held as follows:

"6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused."

25. In the instant case, the delay of more than one

year in analysing the sample remains unexplained.

26. Ext.P6, copy of the forwarding note, is silent

as to the date on which the sample was forwarded to the

Chemical Examiner's laboratory.

27. The learned Magistrate failed to mention the Crl.A.No.961 of 2008

date on which he affixed his signature on Ext.P6

forwarding note. In such a situation it was imperative

for the prosecution to examine the Thondi Clerk of the

court or the Police official who received the sample

from the court to prove the tamper proof despatch of the

sample to the laboratory.

28. 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.

29. 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 possession of the

accused. (vide: State of Rajasthan v. Daulat Ram [(1980)

3 SCC 303], Sathi v. State of Kerala [(2007) 1 KHC 778],

Sasidharan v. State of Kerala [2007 (1) KLT 720]). Crl.A.No.961 of 2008

30. 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.

31. The upshot of the above discussion is that 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. He is set at liberty.

Any amount deposited by the accused as per the interim

orders of this Court shall be disbursed as per law.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU, JUDGE AS