Koodan Sasi vs Sub Inspector Of Police
2021 Latest Caselaw 10001 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                      CRL.A.No.1816 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 272/2003 OF ADDITIONAL
          SESSIONS COURT (ADHOC)-III, THALASSERY


APPELLANT/S:

               KOODAN SASI, S/O. KRISHNAN,
               THANEENTEKEEZHIL,, KANNAVAM AMSOM,
               EDUMBA, KANNUR DISTRICT.

               BY ADV. SRI.CIBI THOMAS

RESPONDENT/S:

      1        SUB INSPECTOR OF POLICE,
               KANNAVAM POLICE STATION,
               KANNUR DISTRICT.

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



OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.1816 of 2007


                                     -2-



                               JUDGMENT

The appellant was convicted and

sentenced by the court below under Section

8(2) of the Abkari Act.

2. The prosecution allegation is

that on 1.03.2002 at about 9.00 a.m., the

appellant was found in possession of two

litres of arrack, in contravention of the

provisions of the Abkari Act.

3. Heard.

4. The learned counsel for the

appellant has argued that since there was

long and unexplained delay in producing the

contraband and the sample before the court,

the appellant is entitled to be acquitted. Crl.Appeal No.1816 of 2007

5. Ext.P5 is the property list,

which would show that the contraband and the

sample were received by the court only on

2.4.2002. PW1 was the Officer who detected

the offence. He also produced the contraband

and the sample before the court. He stated

that even though he produced the contraband

and the sample before the court on 5.3.2002,

the court did not accept it due to the

strike of NGO in the State. It appears that

the accused was produced before the court on

1.3.2002 at 2.30 p.m. PW1 did not state as

to why the contraband and the sample could

not be produced before the court along with

the accused on 01.03.2002, particularly when

the quantity of contraband involved in this Crl.Appeal No.1816 of 2007

case was only two litres. The strike of the

NGO in the State was over on 9.03.2002.

However, the contraband and the sample were

produced before the court only on

2.04.2002. No explanation was given by

PW1 as to why the contraband and the sample

could not be produced before the court

immediately after the culmination of the

strike on 9.03.2002. Therefore, there is

long and unexplained delay in producing the

contraband and the sample before the court.

The delay as such is not always fatal to

the prosecution case. However, if the delay

is not properly explained, the same is,

no doubt, fatal to the prosecution case. Crl.Appeal No.1816 of 2007

6. In this case, since there was

long and unexplained delay in producing the

contraband and the sample before the court,

there cannot be any guarantee that the

sample produced before the court and

analysed in the laboratory was the sample

drawn from the contraband seized from the

appellant. Therefore, there is no link

evidence to connect the appellant with the

sample analysed in the laboratory.

Consequently, the conviction and sentence

passed by the court below relying on Ext.P7

certificate of chemical analysis, cannot be

sustained.

In the result, this criminal appeal

stands allowed, setting aside the conviction Crl.Appeal No.1816 of 2007

and sentence passed by the court below and

the appellant stands acquitted. The bail

bond of the appellant stands discharged.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE STK