Chandran @ Sahadevan vs The Sub Inspector Of Police
2021 Latest Caselaw 15444 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE K. BABU
     FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                       CRL.A NO. 2327 OF 2008
  AGAINST THE     JUDGMENT IN SC.NO.457/2002 OF THE ADDITIONAL
        SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA, KOLLAM
APPELLANT/ACCUSED:

            CHANDRAN @ SAHADEVAN
            S/O. SANKARAN, KADAPPAL CHERRY MELATHIL,
            THRIPPILAZHIKOM MURI, KAREEPRA VILLAGE,
            KOTTARAKKARA TALUK, KOLLAM DISTRICT.

            BY ADV SRI.M.K.CHANDRA MOHANDAS



RESPONDENT/COMPLAINANT & STATE:

    1       THE SUB INSPECTOR OF POLICE
            EZHUKONE, KOLLAM.

    2       STATE OF KERALA REPRESENTED BY THE
            PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM, KOCHI-682031.

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


    THIS    CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2327 of 2008

                                    2




                         K. BABU J.
            ------------------------------------
                    Crl.A.No.2327 of 2008
            ------------------------------------
                 Dated this the 23rd day of July, 2021

                          J U D G M E N T

Aggrieved by the judgment dated 10.09.2008, passed by

the learned Additional Sessions Judge (Abkari Cases),

Kottarakkara in SC.No.457/2002, 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

Kerala Abkari Act.

3. The prosecution case is that on 19.10.1999 at

about 06.30 p.m., the accused was found in possession of

5 liters of illicit arrack for the purpose of sale at

Kuzhimathicadu.

4. The 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 First Crl.A.No.2327 of 2008

Class Magistrate Court-I, Kottarakkara.

5. The case was committed to the Sessions Court,

Kollam, from where it was made over to the Trial Court.

On appearance of the accused charges were framed against

him for the offences punishable under Sections 55(a) and

55(i) of the Abkari Act. The accused pleaded not guilty

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

the aforesaid offences.

6. The evidence for the prosecution consists of the

oral evidence of PWs 1 to 4 and Exts.P1 to P5 and Mos. 1

and 2.

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 was 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 is Crl.A.No.2327 of 2008

guilty of offence under Sections 55(a) and (i) of the

Abkari Act and he was convicted thereunder. The accused

was sentenced to undergo rigorous imprisonment for a term

of one year 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.M.K.Chandramohan Das, 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/accused

canvassed the following grounds to challenge the

judgment of conviction and sentence:

(a) The inordinate delay in the production of the

properties before the court has not been

satisfactorily explained by the prosecution.

(b) The prosecution failed to establish that the

contraband substance said to have been seized

from the place of occurrence was eventually

subjected to analysis at the Chemical

Examiner's laboratory.

Crl.A.No.2327 of 2008

10. The learned Senior Public Prosecutor, per

contra, submitted that the prosecution could well

establish the charge 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. PW4, the Sub Inspector of Police, Ezhukone,

detected the offence. He has given evidence that on

19.10.1999 at about 06.30 p.m., the accused was found in

possession of about 5 liters of illicit arrack for the

purpose of sale at Kuzhimathicadu. The accused was

arrested from the spot by PW4. PW4 seized the contraband

substance found in the possession of the accused. He had

collected 375 ml of arrack in two bottles as sample and

sealed the same. PW4 prepared Ext.P1 seizure mahazar.

PW3, a Police Constable, who had accompanied PW4, has

given evidence in support of the version given by PW4.

13. PWs 1 and 2, the independent witnesses, examined

to prove the incident proper, did not support the Crl.A.No.2327 of 2008

prosecution case. PW4 conducted investigation and

submitted final report before the Court against the

accused.

14. Learned counsel for the appellant/accused

contended that the inordinate delay in the production of

the properties before the court has not been

satisfactorily explained by the prosecution. PW4, the

detecting Officer, admitted that the properties allegedly

seized from the place of occurrence were produced before

the Court only on 22.01.2000. Ext.P4, the list of

properties, sent to the Magistrate also shows that the

properties were produced before the court only on

22.01.2000. The explanation of PW4 is that the properties

were in his safe custody during this period.

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:

"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 Crl.A.No.2327 of 2008

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)

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/accused

contended that the prosecution failed to establish that

the sample stated to have been drawn from the contraband

substance at the place of occurrence eventually was

subjected to analysis at the Chemical Examiner's

laboratory.

Crl.A.No.2327 of 2008

18. The learned counsel for the appellant/accused

relied on the following circumstances to substantiate his

contentions:

(a) The inordinate delay in the production of

properties before the court has not been

satisfactorily explained.

(b) The official witnesses have not given evidence as

to the nature and description of the seal affixed

on the bottles containing the sample.

(c) Ext.P1, seizure mahazar, is silent regarding the

nature and description of the seal said to have

been used.

(d) There is no evidence to show that the specimen

impression of the seal had been produced before

the court and forwarded to the Chemical

Examiner's laboratory.

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

official, who had accompanied him in the search and

seizure, have not given evidence as to the nature and

description of the seal affixed on the bottles containing Crl.A.No.2327 of 2008

the sample. Ext.P1, seizure mahazar, is silent regarding

the nature and description of the seal stated to have

been affixed on the bottles containing the sample.

20. The specimen impression of the seal affixed on

the bottle containing the sample had not been produced

before the court. There is also no evidence to show that

the specimen impression of the seal had been forwarded to

the Chemical Examiner for verification to ensure that the

sample seal so provided was tallying with the seal

affixed on the bottle containing the sample.

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 affixed on the bottle containing the

sample is required to be forwarded to the Chemical

Examiner for verification to ensure that the sample seal

so provided is tallying with the seal affixed on the

bottle containing the sample. [vide: Bhaskaran v. State Crl.A.No.2327 of 2008

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

State of Kerala (2019 KHC 191), Majeedkutty v. Excise

Inspector [(2015) 1 KHC 424] and Achuthan v. State of

Kerala [ILR 2016 (2) Ker. 145]].

22. 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 had been provided

to the Chemical Examiner. The copy of the forwarding

note, which contains the specimen impression of the seal

used and the name of the official with whom the sample

was entrusted for delivering the same to the Chemical

Examiner's laboratory, has not been produced and marked

in this case.

23. 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 Crl.A.No.2327 of 2008

in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt."

24. 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".

25. 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 had been provided to the Chemical

Examiner, no evidentiary value can be given to Ext.P5

chemical analysis report.

26. This Court is in the dark as to the name of the Crl.A.No.2327 of 2008

official who actually received the sample from the court.

There is also no evidence as to the date on which the

sample was handed over to the Police official concerned.

In such a situation, it was imperative for the

prosecution to examine the Thondi Clerk of the court or

the Police official concerned to establish tamper proof

despatch of the sample from the court to the laboratory.

(vide: Viswanathan v. State of Kerala [(2016) 3 KHC 38],

Kumaran v. State of Kerala [2016 (4) KLT 718]).

27. It is admitted case of the prosecution that the

sample remained in the custody of the Thondi Clerk of the

court, the Police official who received the same from the

court and the Police official who delivered the sample to

the Chemical Examiner's laboratory. None of these

witnesses were examined by the prosecution to prove that

while in their custody the seal was not tampered with.

The inevitable effect of this omission is that the

prosecution failed to rule out the possibility of the

sample being changed or tampered with during the period,

a fact which had to be proved affirmatively by the Crl.A.No.2327 of 2008

prosecution. ((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]).

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.

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 Crl.A.No.2327 of 2008

arising from the absence of link evidence as discussed

above.

31. The trial court passed the impugned judgment of

conviction and sentence overlooking these vital aspects

of the matter. The judgment of conviction and sentence is

liable to be set aside. The appellant/accused is

therefore not guilty of the offence punishable under

Sections 55(a) and (i) of the Abkari Act. He is acquitted

of the charges levelled against him. He is set at

liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU, JUDGE AS