Bhaskaran Pokku vs State Of Kerala
2021 Latest Caselaw 15604 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE K. BABU
       TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
                         CRL.A NO. 2961 OF 2008
 AGAINST THE       JUDGMENT DATED 24.11.2008 IN SC 121/2004 OF THE
  ADDITIONAL SESSIONS JUDGE, (ADHOC)-III, THALASSERY, KANNUR
APPELLANT/ACCUSED:

            BHASKARAN POKKU
            S/O.NAADAN, MANGADAN HOUSE, KOLAYAD AMSOM,
            KOMMERI DESOM, KANNUR DISTRICT.




            BY ADVS.
            SRI.JIJO JOSEPH
            SRI.RAJESH THOMAS



RESPONDENT/COMPLAINANT:

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



OTHER PRESENT:

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


THIS    CRIMINAL     APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2961 OF 2008

                                     2




                         K. BABU J.
            ------------------------------------
                    Crl.A.No.2961 of 2008
            ------------------------------------
              Dated this the 27th        day of July, 2021

                          J U D G M E N T

Challenge in this appeal is to the judgment dated

24.11.2008, passed by the learned Additional Sessions

Judge, (Adhoc-III), Thalassery, in SC.No.121/2004.

2. By the impugned judgment the accused was

convicted of the offence punishable under Section 8(2) of

the Kerala Abkari Act.

3. The prosecution case is that on 09.11.2002 at

about 18.30 hours, the accused was found in possession of

3 liters of country made arrack at Nedumpoyil in Kolayad

Amsom. The offence was detected by the SI of Police,

Peravoor.

4. After completion of the investigation, final

report was submitted against the accused for the offence

punishable under Section 55(a) of the Abkari Act before CRL.A NO. 2961 OF 2008

the Judicial First Class Magistrate Court, Kuthuparamba.

5. The case was committed to the Sessions Court,

Thalassery, from where it was made over to the Trial

Court. 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 4 and Exts.P1 to P8 and MO.1.

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. 2961 OF 2008

guilty of offence under Section 8(2) of the Abkari Act

and he was convicted thereunder. The accused was

sentenced to undergo rigorous imprisonment for a term of

one year and to pay a fine of Rs.1,00,000/- under Section

8(2) of the Abkari Act.

8. Heard Sri.Jijo Joseph, 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 has not succeeded in

establishing that the contraband substance

allegedly seized from the place of occurrence

was eventually subjected to analysis at the CRL.A NO. 2961 OF 2008

Chemical Examiner's laboratory.

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. PW1, the SI of Police, Peravoor Police Station,

on 09.11.2002, found the accused carrying a 5 liter

black Can at Kolayad. PW1 intercepted the accused and

inspected the liquid contained in the Can and found that

it contained 3 liters of illicit arrack. PW1 seized the

contraband substance found in the possession of the

accused, as per Ext.P3 Seizure Mahazar. He collected 750

ml of arrack in 2 bottles (375 ml each) as sample and

sealed the same. He registered Ext.P4 FIR against the

accused.

13. PWs 2 and 3, the independent witnesses, did not CRL.A NO. 2961 OF 2008

support the prosecution case. PW4, the SI of Police,

Kelakam Police Station, conducted investigation. Final

report was submitted by the SI of Police Peravoor.

14. The 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. PW1, the SI

of Police, Peravoor Police Station, admitted that the

properties including the sample were produced before the

court only on 25.11.2002 due to pressure of work. Ext.P5,

the list of properties, sent to the Magistrate would also

show that the properties including the sample were

produced before the court only on 25.11.2002. The

explanation offered by PW1, the detecting officer, is no

way satisfactory.

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:

CRL.A NO. 2961 OF 2008

"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)

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

further contended that the prosecution has not succeeded

in establishing that the contraband substance allegedly

seized from the possession of the accused ultimately

reached the Chemical Examiner's laboratory. CRL.A NO. 2961 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) PW1, the detecting officer, has not given

evidence as to the nature and description of the

seal affixed on the bottles containing the

sample.

(c) Ext.P3, 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. The oral evidence of PW1, the detecting

officer, is silent regarding the nature and description CRL.A NO. 2961 OF 2008

of the seal affixed on the bottles containing the sample.

Ext.P3, seizure mahazar, does not contain the specimen

impression of the seal stated to have been affixed on the

bottles 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 bottles 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. [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 no evidence to show that

the specimen impression of the seal had been produced

before the court and the same was forwarded to the

Chemical Examiner's laboratory.

22. I have carefully perused the oral evidence of

the official witnesses and the documents produced and CRL.A NO. 2961 OF 2008

marked from the side of the prosecution. 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. Ext.P7, copy of the forwarding note,

is also silent regarding the specimen impression of the

seal affixed on the bottles containing the sample. What

is affixed in Ext.P7, is the official seal of the

Judicial First Class Magistrate Court-Kuthuparamba

against the specimen impression of the seal.

23. Ext.P8, the certificate of Chemical analysis,

contains a certification that the seals on the bottles

were intact and found tallied with the sample seal

provided. In the absence of any evidence to show the

production of the specimen impression of the seal affixed

on the bottles containing the sample before the court and

forwarding of the same to the Chemical Examiner's

laboratory, the above referred certification by the

Chemical Examiner in Ext.P8 cannot be accepted. CRL.A NO. 2961 OF 2008

24. While considering a fact situation in which the

prosecution failed to establish that the specimen

impression of the seal was not produced before the court

and forwarded to the Chemical Examiner, this Court in

Rajamma v. State of Kerala [2014 (1) KLT 506], 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. Ext.P7, copy of the forwarding note, is also

silent regarding the name of the person with whom the

sample was sent for analysis. The learned Magistrate who

countersigned Ext.P7, the copy of the forwarding note,

also omitted to mention the date on which he affixed his CRL.A NO. 2961 OF 2008

signature.

26. Ext.P8, certificate of chemical analysis, would

show that the bottles containing the sample were

forwarded to the Chemical Examiner by the Judicial First

Class Magistrate Court-Kuthuparamba as per letter dated

27.11.2002. Ext.P8 would show that bottles containing the

sample were received in the laboratory on 28.12.2002.

27. Prosecution has not adduced any evidence as to

the date on which the sample was forwarded to the

Chemical Examiner's laboratory. The necessary inference

is that the sample was forwarded to the laboratory on

27.11.2002, but the same reached the laboratory after one

month, on 28.12.2002. In such a situation, the

prosecution ought to have examined the property clerk of

the court or the Excise official, who received the sample

from the court or the Excise Official, who delivered the

sample to the Chemical Examiner's laboratory to establish

tamper proof despatch of the sample from the court to the

laboratory. (vide: Viswanathan v. State of Kerala [(2016) CRL.A NO. 2961 OF 2008

3 KHC 38], Kumaran v. State of Kerala [2016 (4) KLT

718]).

28. It is the admitted case of the prosecution

that the sample changed several hands before it reached

the Chemical Examiner's laboratory. The sample remained

in the custody of the property clerk of the court, the

Excise official who received the same from the court and

the Excise official who delivered the samples 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

samples being changed or tampered with during the period-

a fact which had to be proved affirmatively by the

prosecution. (vide: State of Rajasthan v. Daulat Ram

[(1980) 3) SCC 303]).

29. In view of the above discussed infirmities, no

evidentiary value can be attached to Ext.P8, certificate CRL.A NO. 2961 OF 2008

of Chemical analysis.

30. 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.

31. 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: Sathi v. State of Kerala [2007 (1) KHC

778], Sasidharan v. State of Kerala [2007 (1) KLT 720]).

32. 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 CRL.A NO. 2961 OF 2008

above.

33. 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 8(2) of the

Abkari Act. He is acquitted of the charge levelled

against him. He is set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU, JUDGE AS