Thomas vs State Of Kerala
2021 Latest Caselaw 9777 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                      CRL.A.No.1437 OF 2011

    SC 463/2010 OF ADDITIONAL DISTRICT COURT (ADHOC I),
                        THODUPUZHA


APPELLANT/S:

               THOMAS, AGED 37 YEARS, S/O.ANTONY
               MATTAPPALLIL,LAKSHAM VEEDU COLONY,MACHILPLAVU,
               BHAGAM,ADIMALY KARA,KDH VILLAGE.

               BY ADVS.
               SRI.K.S.HARIHARAPUTHRAN
               SRI.DIPU JAMES
               SRI.GEORGE MATHEW
               SMT.K.V.RAMYA
               SRI.M.D.SASIKUMARAN

RESPONDENT/S:

               STATE OF KERALA
               INSPECTOR OF POLICE,MUNNAR POLICE STATION
               THROUGH PUBLIC PROSECUTOR,HIGH COURT OF
               KERALA,ERNAKULAM.


OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. CRL.A.No.1437 OF 2011



                                 -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 20.10.2010

at about 7.15 p.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 delay in producing the contraband and

the samples before the court, the appellant is entitled to be

acquitted.

5. The incident in this case was on 20.10.2010. Case No. CRL.A.No.1437 OF 2011

Ext.P8 is the Property list, which would show that the

contraband and the samples were produced before the court

only on 23.10.2010. PW4 was the Officer who produced

the contraband and the samples before the court. PW4

initially stated that the contraband and the samples were

produced before the court along with the appellant on

21.10.2010. However, in cross-examination, PW4 stated

that the contraband and the samples were produced before

the court only on 23.10.2010. No reason was stated by

PW4 for the delay in producing the contraband and the

samples before the court. However, a Court question was

asked as to why the contraband and the samples could not

be produced before the court along with the appellant.

Then he stated that the appellant was produced in the Case No. CRL.A.No.1437 OF 2011

residence of the learned Magistrate and hence, the

contraband and the samples could not produced along with

the accused. It appears that the appellant was produced

before the learned Magistrate on 21.10.2010 at 6.45 p.m.

The incident was on 20.10.2010 at 7.15 p.m. No evidence

was adduced by the prosecution as to why the contraband

and the samples could not be produced before the court on

21.10.2010 during court hours. No evidence was also

adduced by the prosecution as to why the contraband and

the samples could not be produced before the court on

22.10.2010. There is also no evidence to prove the safe

custody of the contraband and the samples till their

production before the court. The delay as such, is not

always fatal to the prosecution case. However, if the delay Case No. CRL.A.No.1437 OF 2011

is not explained, the same is, no doubt, fatal to the

prosecution case. In this case, since there was unexplained

delay from 20.10.2010 to 23.10.2010 in producing the

contraband and the samples before the court, there cannot

be any guarantee that the samples produced before the

court and analysed in the laboratory were the samples

drawn from the contraband seized from the appellant,

particularly where there is no evidence with regard to the

safe custody of the samples till their production before the

court. In the said circumstances, there is no satisfactory

link evidence to connect the appellant with the samples

analysed in the laboratory. Therefore, the conviction and

sentence passed by the court below relying on P10 Certificate of

Chemical Analysis cannot be sustained and consequently, I Case No. CRL.A.No.1437 OF 2011

set aside the same.

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.

Needless to state that if the appellant had already

deposited any amount before the trial court pursuant to the

direction of this court, the appellant is entitled to

reimbursement of the said amount from the court

concerned.

sd

B. SUDHEENDRA KUMAR, JUDGE.

dl/