Saju vs State Of Kerala
2021 Latest Caselaw 13336 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
     MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
                     CRL.A NO. 2243 OF 2006
AGAINST THE JUDGMENT IN SC 451/2005 OF ADDITIONAL DISTRICT AND
 SESSIONS COURT (ADHOC), FAST TRACK COURT III, PATHANAMTHITTA


APPELLANT/ACCUSED:

          SAJU
          S/O THANKAPPAN,
          SATHEESH BHAVANAM, MANPILAVU, CHITTAR.

          BY ADV M.V.S.NAMPOOTHIRY(SR)



RESPONDENT/COMPLAINANT:

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

          BY SR. PUBLIC PROSECUTOR SRI.M.S.BREEZ



         THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2243 of 2006             2




                            K.BABU, J.
                   =====================
                       Crl.A.No.2243 of 2006
                   =====================
                    Dated this the 28th of June, 2021



                           JUDGMENT

Aggrieved by the judgment dated 7.11.2006, passed by the

Additional District and Sessions Judge (Adhoc), Fast Track Court

III, Pathanamthitta in Sessions Case No.451/2005, the accused

has preferred this appeal. The learned trial court convicted the

appellant for the offence punishable under Section 8(2) of the

Kerala Abkari Act.

2. On 6.2.2004 the appellant was found in possession of

7 litres of arrack in a 10 litre can and a glass tumbler at

Manpilavu, Kumaramperoor Vadakkekaramuri in Chittar

Seethathodu Village. He was arrested by the Sub Inspector of

Police, Chittar Police Station. The police seized 7 litres of illicit

arrack and glass tumbler from the possession of the accused.

After completion of investigation, final report was submitted

against the accused for offence punishable under Section 8(2) of

the Abkari Act before the Judicial First Class Magistrate Court,

Ranni. The case was committed to the Sessions Court,

Pathanamthitta from where it was made over to the Additional

Sessions Court. On appearance of the accused, charge was

framed against the accused for the offence punishable under

Section 8(2) of the Abkari Act. The accused pleaded not guilty

and therefore, he came to be tried by the learned Additional

Sessions Judge for the aforesaid offence. To prove the case

against the accused, the prosecution examined as many as four

witnesses. Exts.P1 to P10 were marked. Currency notes,

cannas and a glass tumbler were marked as MO1, MO2 and

MO3 respectively. After the closure of the evidence on behalf of

the prosecution, the statement of the accused under Section 313

Cr.P.C. was recorded. He pleaded total 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 convicted the

accused and sentenced him to undergo 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.

3. The learned counsel for the accused submitted that

the inordinate delay in the production of properties including the

sample before the court has not been satisfactorily explained.

4. The learned counsel further submitted that there is

lack of evidence to show that the sample allegedly taken at the

place of occurrence ultimately reached the Chemical Examiner's

laboratory.

5. The learned Public Prosecutor, per contra, contended

that materials are sufficient to establish the charge against the

accused. She submitted that the delay has been satisfactorily

explained.

6. The prosecution case is that the accused was found in

possession of seven litres illicit arrack on 6.2.2004 at 11 am at

Manpilavu in Thekkekkara Ward in Seethathodu village.

According to the prosecution, the accused was arrested from the

spot and the contraband articles were recovered from his

possession. PW4, the detecting officer, has given evidence that

he collected sample from the contraband article seized from the

possession of the accused, in two bottles.

7. The learned counsel for the accused contended that

there is inordinate delay in the production of the material

objects along with the sample before the court. The alleged

seizure was on 6.2.2004. Ext.P8, the property list, shows that

the material objects reached the court only on 10.2.2006. There

is no satisfactory explanation from the part of the detecting

officer, who was examined as PW4, regarding the delay in the

production of the material objects including the sample before

the court. In Ravi v. State of Kerala (2011(3) KHC 121) a

Division Bench of this Court held that production of the property

before the court should take place without unnecessary delay

and that there should be explanation for the delay when there is

delayed production of the property. In the instant case the

prosecution miserably failed to advance satisfactory explanation

for the delay in the production of the properties before the

court. Unexplained delay in production of properties would lead

to the conclusion that tampering with the samples could not be

ruled out.

8. The learned counsel for the accused further

submitted that the prosecution failed to prove that the sample

allegedly collected at the scene of occurrence ultimately reached

the hands of the Chemical Examiner in a tamper proof condition

and that it was the very same sample which was drawn from the

contraband liquor allegedly seized from the accused. Ext.P9, the

copy of the forwarding note is silent regarding the specimen

impression of the seal affixed on the bottles containing the

sample. The specimen impression of the seal has not been

produced and marked. In Ext.P10 certificate of Chemical

Analysis it is certified that the seals on the bottles were intact

and found tallied with the sample seal provided. On a careful

analysis of the materials placed before the court, there is

nothing to show that sample seal was placed before the court to

be forwarded to the Chemical Examiner's laboratory. Hence the

certification in Ext.P10 to the effect that the seals on bottles

were intact and found tallied with the sample seal provided,

cannot be accepted.

9. There is absolutely no evidence to convince the court

that specimen impression of the seal has been provided to the

Chemical Examiner. None of the prosecution witnesses have

given evidence on those aspects. In Rajamma v. State of

Kerala [(2014) 1 KLT 506)], while dealing with the question of

lack of evidence regarding the production of specimen seal

before the court to be provided to the Chemical Examiner, this

Court held as follows:-

"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 PW.1 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."

10. There is also no evidence as to who received the

sample bottle from the court and on which date. The

prosecution failed to establish these vital aspects, which are

imperative to form a link evidence to show that the very same

sample which was drawn from the contraband substance

allegedly seized from the possession of the accused reached the

hands of the Analyst. In the absence of this link evidence no

value can be given to Ext.P10 certificate of chemical analysis.

11. Admittedly the sample changed several hands. The

sample was handled by the Thondi Clerk of the court, the police

official who received the same from the court and the official

who delivered the same to the laboratory. None of these

witnesses were examined to prove the tamper proof despatch of

the sample to the laboratory.

12. Relying on State of Rajasthan v. Daulat Ram

[AIR(1980)SC 1314] this Court in Sasidharan v. State of

Kerala [2007(1) KHC 275] held that when sample changed

several hands, the prosecution can succeed only if it is

established that the same ultimately reached the hands of

Chemical Examiner in a tamper proof condition and that it was

the same sample, that was drawn from the contraband

liquor/arrack allegedly seized from the accused.

13. In the instant case the prosecution miserably failed to

establish that the sample reached the hands of the analyst in a

tamper proof condition. There is absolutely no link evidence to

establish that the sample drawn from the arrack allegedly seized

from the possession of the accused eventually reached the hands

of the Analyst in a tamper proof condition.

14. The resultant conclusion is that the prosecution failed

to establish the case against the accused beyond reasonable

doubt. The conviction recorded and the sentence passed by the

court below overlooking these important aspects cannot be

sustained.

In the result, this appeal is allowed. The appellant is not

found guilty of the offence punishable under Section 8(2) of the

Abkari Act. The appellant/accused is acquitted. He is set at

liberty.

Sd/-

K. BABU

JUDGE ab