V.V.Mathew @ Manu vs State Of Kerala
2021 Latest Caselaw 7796 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                     CRL.A.No.2234 OF 2007

AGAINST THE ORDER/JUDGMENT IN SC 255/2006 DATED 22-10-2007
      OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA


APPELLANT/ACCUSED:

           V.V.MATHEW @ MANU
           AGED 41 YEARS
           VARIYAPPURACKAL VEEDU,
           KALLADAKKADA BHAGOM, BETHEL KARA,
           KALKOONTHAL VILLAGE.

           BY ADV. SRI.K.SUNILKUMAR

RESPONDENT/COMPLAINANT:

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

           SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                             -2-

Crl.A.No.2234 OF 2007




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 8(2) and 55(a) of the

Abkari Act.

2. The prosecution case is that on 20.08.2004 at

about 7.30 p.m., the appellant was found in possession

of 1 litre of arrack in his fast food shop, for the purpose

of sale, in contravention of the provisions of the Abkari

Act.

3. Heard.

4. The learned counsel for the appellant has

argued that since there was delay in producing the

contraband and the sample before the court, the

appellant is entitled to benefit of doubt.

Crl.A.No.2234 OF 2007

5. It appears that the seizure was effected on

20.08.2004. Ext.P11 is the property list, which would

show that the contraband and the sample were

produced before the court only on 23.08.2004. No

reason was stated by PW4, who produced the

contraband and the sample before the court, for the

delay in producing the contraband and the sample

before the court. It appears from the records that the

appellant was produced before the court on 21.08.2004

at 3.45 p.m. It is not discernible as to why the

contraband and the sample could not be produced

before the court along with the appellant, particularly

when the quantity of contraband involved in this case

was only 1 litre of arrack. 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. In this case, there is also

Crl.A.No.2234 OF 2007

no evidence with regard to the safe custody of the

contraband and the sample till their production before

the court. Since there was unexplained delay from

20.08.2004 to 23.08.2004 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,

particularly when there is no evidence with regard to

the safe custody of the sample till its production before

the court. In the said circumstances, there is no

satisfactory link evidence to connect the appellant with

Ext.P13 certificate of chemical analysis. Consequently,

the conviction and sentence passed by the court below

on the basis of Ext.P13 certificate of chemical analysis

cannot be sustained. In the said circumstances, the

appellant is entitled to be acquitted.

Crl.A.No.2234 OF 2007

In the result, this criminal appeal stands allowed,

setting aside the conviction 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 Nkr/05.03.2021