Kerala High Court
Reji, S/O.Ithappiri vs State Of Kerala on 28 June, 2021
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. 1196 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 415/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC-1), THODUPUZHA, IDUKKI
APPELLANT/ACCUSED-1:
REJI, S/O.ITHAPPIRI
AGED 1 YEARS
PUNNEDATHUMOOLAYIL,MURICKASSERY KARA,
VATHIKUDY VILLAGE.
BY ADVS.
SHAJI THOMAS
JEN JAISON
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM,,
CRIME NO,. 49/2003 OF KANJIRAPPALLY POLICE STATION
BY ADVS.
SMT. MAYA M.N. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.1196 of 2006
2
K.BABU, J.
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Criminal Appeal No.1196 of 2006
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Dated this the 28th day of June, 2021
JUDGMENT
Aggrieved by the judgment dated 23-05-2006, passed by the
Additional Sessions Court (Adhoc-1), Thodupuzha in Sessions Case
No.415/2004, the accused No.1 has preferred this appeal. The
appellant was convicted under Sec.55(a) of Abkari Act and sentenced
to rigorous imprisonment for a term of one year and to pay fine of
Rs.1 Lakh.
2. Facts: On 06-06-2003 at 11.15 in the night the Inspector of
Police, Kanjikkuzhy (PW5) was on patrol duty at Chelechuvadu
bhagam. PW5 intercepted a car bearing registration No.KL-6 A
7340 driven from Churuli bhagam. The car stopped at a distance of
10 meters from the place where the police officials were on duty.
Two persons got out from the car and ran away. The police could
not apprehend them. In the subsequent search made by the police
they recovered three white plastic sacks containing 120 bottles
having 375 ml capacity, containing 'KS 99 XXX Rum'. The police
Crl.Appeal No.1196 of 2006
seized the contraband articles from which samples of 200 ml each in
2 bottles were taken and sealed.
3. After investigation, the Inspector of Police, Kanjikkuzhy
(PW7) submitted final report against the appellant and another
before the Judicial Magistrate of First Class, Idukki. The case was
committed to the Sessions Court, Thodupuzha from where it was
made over to the Additional Sessions Court (Adhoc-1), Thodupuzha.
On appearance of the accused before the court charge was framed
against them alleging offence punishable under Sec.55(a) of Abkari
Act. They pleaded guilty to the charge.
4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to
P10 and MO1 (series) to MO4 (series).
5. After closure of prosecution evidence the accused were
examined under Sec.313 Cr.P.C. They pleaded total innocence. The
trial court heard the matter under Sec.232 Cr.PC and found that
there is evidence against the accused and they were called upon to
enter on their defence. After hearing arguments on both sides, the
trial court convicted the appellant (accused No.1) and he was
sentenced to rigorous imprisonment for a term of one year and to
pay a fine of Rs.1 Lakh. The accused No.2 was acquitted of the
Crl.Appeal No.1196 of 2006
charge.
6. The learned counsel for the appellant/accused submitted
as follows:
(i) The prosecution failed to establish the identity of the
persons who were found in possession of the contraband
articles at the place of occurrence.
(ii) There is delay in the production of the samples before
the court.
(iii) No specimen impression of seal affixed on the bottles
containing the sample was forwarded to the Chemical
Analyst so as to ascertain whether the contraband
articles allegedly seized from the scene of occurrence
were sent to the Analyst.
(iv) The prosecution failed to establish that the contraband
articles allegedly seized from place of occurrence
eventually reached the Chemical Examiner's Laboratory.
7. The learned Public prosecutor submitted that the
prosecution successfully established the offence alleged against the
accused.
8. The learned counsel for the appellant submitted that
Crl.Appeal No.1196 of 2006
prosecution miserably failed to establish the identity of the persons
who were found in possession of the contraband articles. As per the
prosecution case, the appellant and another (accused No.2) came to
the place of occurrence in a car bearing registration No.KL- 6 A 7340
and on seeing the police party they got out from the car and ran
away from the scene. PWs 5 and 6 identified the appellant and the
other accused as the persons who ran away from the scene. Pws 5
and 6 have no case that they had any previous acquaintance with the
appellant. They identified the appellant in the court in the year
2006 after a long lapse of three years. There is nothing on record to
show that PWs 5 and 6 had any opportunity to see the appellant
after the incident. Going by their evidence PWs 5 and 6 had only a
fleeting glimpse of the persons ran away from the scene.
9. It is well settled that where a witness identifies an accused
who is not known to him in the court for the first time his evidence is
absolutely valueless, unless there has been a previous test
identification parade to test his powers of observation. If the witness
is not provided with an opportunity to test his power of observation
it is wholly unsafe to rely on his bare testimony regarding the
identification of an accused for the first time in court [vide: Kanan
Crl.Appeal No.1196 of 2006
and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v.
State of Maharashtra [AIR 2007 SC 971], Raja v. State by
Inspector of Police [AIR 2020 (SC) 254], State (Delhi
Administration) v. V.C.Shukla and another [AIR 1980 (SC)
1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367].
So on this ground alone the prosecution must fail.
10. The second contention of the learned counsel for the
appellant is that, there is delay in sending the properties including
the sample to the court. The alleged incident took place on
06-06-2003. Exhibit P5, the list of properties sent to the court,
shows that the material objects were produced before the court on
09-06-2003. The explanation of PW5 is that he had kept those
articles in his safe custody.
11. In Ravi v. State of Kerala [2011 (3) KHC 121] on the
question of delay in production of properties a Division Bench of this
Court held thus:
"8. We, therefore, answer the reference as follows:
1. It is not necessary to produce the article seized under S.34 of
the Abkari Act before the Magistrate 'forthwith' either by virtue of
S.102(3) Cr.PC 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.Appeal No.1196 of 2006
production of the property." (Emphasis supplied)
In Ravi's case (supra) the Division Bench 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.
12. There is no satisfactory explanation for the delay in the
production of properties before the court. The unexplained delay in
the production of properties would lead to the conclusion that
tampering with samples could not be ruled out.
13. The learned counsel for the accused vehemently contended
that the prosecution failed to rule out the possibility of the samples
being changed or tampered with during the period in which those
were handled by different persons. It is borne out from the evidence
that the samples changed several hands before reaching the Public
Analyst. It remained in the custody of the thondi clerk till
10-06-2003. The sample was handed over to Sri.Jolly P.C on
10-06-2003 who delivered the same to the Analyst on 11-06-2003.
None of these witnesses were examined to see that the samples were
in their safe custody and the seals were not tampered with. Relying
on State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314] this
Crl.Appeal No.1196 of 2006
Court in Sasidharan v. State of Kerala [2007 (1) KHC 275] held
that in cases where sample changed several hands the prosecution
can succeed only if it is established that it 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. In the instant case, due to
non-examination of the above referred officials who handled the
sample the prosecution failed to establish that the sample ultimately
reached the hands of the chemical examiner in tamper proof
condition and that it was the very same sample which was drawn
from the contraband liquor allegedly seized from the accused.
14. The upshot of the above discussion is that the prosecution
failed to establish that the contraband articles allegedly seized from
the car bearing registration No.KL-6 A 7340 at the place of
occurrence eventually reached the hands of the Chemical Examiner
and that it was the appellant who got out from the car and ran away
from the scene of occurrence.
15. The conviction recorded and the sentence passed by the
court below overlooking the above vital aspects cannot be sustained.
In the result, the appellant is not found guilty of the offence
Crl.Appeal No.1196 of 2006
punishable under Sec.55(a) of the Abkari Act. The
appellant/accused is acquitted. He is set at liberty.
The appeal is allowed as above.
Sd/-
K.BABU,
JUDGE
KAS
