Ranjith vs State Of Kerala
2021 Latest Caselaw 23611 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 30TH DAY OF NOVEMBER 2021/9TH AGRAHAYANA, 1943
                    CRL.A NO. 1503 OF 2006
AGAINST THE JUDGMENT IN SC 243/2004 OF ADDITIONAL DISTRICT &
             SESSIONS JUDGE, THIRUVANANTHAPURAM
    CP 1/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
                           ATTINGAL
APPELLANT/1ST ACCUSED:

         RANJITH
         S/O.THYAGARAJAN,THADATHARIKATHU VEEDU,
         NELLANADU VILLAGE,, VENJARAMOODU.

         BY ADV SRI.SAJU.S.A



RESPONDENT/STATE:

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

         BY ADV PUBLIC PROSECUTOR SRI.SANL P.RAJ


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.1503/2006

                              -:2:-




                          J U D G M E N T

Dated this the 30th day of November, 2021

This is an appeal filed by the first accused in SC

No.243/2004 on the file of the Additional Sessions Court, (Fast

Track Court-I), Thiruvananthapuram dated 5/7/2006 convicting

the accused u/s 55(a) r/w 8 (2) of the Abkari Act.

2. The prosecution case in short is that on 25/6/2001 at

1.30 p.m., the accused were found in possession of 2½ litres of

arrack in MO1 white can having a capacity of 10 litres and MO2

glass for the purpose of sale at the Puthukulam pathway adjacent

to the western bund of Puthukulam ela 100 metres east of KSRTC

bus stand in Venjaramoodu, Nellanadu village in contravention of

the Abkari Act and Rules and thereby committed the offence.

3. On receipt of summons, the accused appeared at the

court below. After hearing both sides, the court below framed

charge under Section 55(a) r/w S. 8(1) and (2) of the Abkari Act.

The charge was read over and explained to the accused who Crl.Appeal No.1503/2006

pleaded not guilty. On the side of the prosecution, PWs1 to 5

were examined and Exts. P1 to P5 were marked. MO1 and MOII

were identified. No defence evidence was adduced. On

appreciation of the evidence, the court below found the first

accused guilty under Section 55(a) r/w S.8(2) of the Abkari Act

and he was convicted for the said offence. The second accused

was acquitted. The court below sentenced the first accused to

undergo rigorous imprisonment for two years and to pay a fine of

`1,00,000/-, in default to suffer rigorous imprisonment for one

year. The said conviction and sentence are under challenge in

this appeal.

4. The counsel for the appellant is reported no more.

Even though one Adv.Thariq Anwar who was the associate of the

erstwhile counsel for the appellant appeared and sought time to

file vakalath as early as on 10/8/2021, no vakalath is seen filed.

Today, nobody represents the appellant. However, I am of the

view that the appeal can be disposed of on perusal of the

records.

5. Heard the learned Public Prosecutor and perused the

records.

Crl.Appeal No.1503/2006

6. The perusal of the evidence on record would show that

there is lack of evidence to prove that the very same sample

which was drawn from the contraband seized from the accused

had reached the chemical analyst's laboratory in a tamper proof

condition. There is also undue delay in producing the seized

contraband substance as well as the sample drawn from it at the

court. There is no seal in the forwarding note and seizure

mahazar.

7. This Court in K.Bhaskaran v. State of Kerala

(2020(5) KLT Online 1057) has held that the specimen seal shall

be provided in the seizure mahazar and also in the forwarding

note, so as to enable the court to satisfy the genuineness of the

sample produced in the court. It was also observed in the said

judgment that the nature of the seal used shall be mentioned in

the seizure mahazar. A perusal of Ext.P1 mahazar would show

that it does not contain the sample seal or the description of the

seal used.

8. This Court in Smithesh v. State of Kerala (2019 (2)

KLT 974) has held that the forwarding note must contain the

specimen of the seal affixed on the sample. The forwarding note Crl.Appeal No.1503/2006

is the link evidence to show that it was the same sample which

was drawn from the contraband seized from the accused had

eventually reached the chemical analysis laboratory by change of

hands in a tamper proof condition. In the absence of seal in the

forwarding note, it cannot not be found that the prosecution has

proved beyond reasonable doubt that the very same sample

taken at the spot of occurrence had reached the chemical

examiner for analysis in a tamper proof condition.

9. It is settled that the unexplained delay in producing

the contraband substance and the samples drawn from it at the

court is fatal to the prosecution case. The Apex Court in State of

Uttar Pradesh v. Hansraj @ Hansu [(2018) 18 SCC 355] has

held that when there is delay in producing samples of contraband

substance in Court and when evidence is that they were kept in

police station, prosecution has to adduce evidence to show as to

how and in what condition the same were preserved at the police

station. A Division Bench of this Court in Ravi v. State of Kerala

[2011 (3) KLT 353] has held that even though law does not

mandate production of seized articles forthwith before the Court

and it enjoins only reporting the seizure forthwith to the Court, Crl.Appeal No.1503/2006

the production of the seized articles shall take place without

unnecessary delay and if there is delay, it should be satisfactorily

explained. A Single Bench of this Court in Ramankutty v. Excise

Inspector [2013 (3) KHC 308] has held that in the absence of

proper explanation for the delay, even one day's delay is fatal.

Similar view has been expressed by another Single Bench of this

Court in Ravi v. State [2018 (4) KLT Online 2056]. Relying on

the Division Bench's decision in Ravi (supra), recently, another

Single Bench of this Court in Anilkumar v. State of Kerala

(2020 (4) KLT 34) has also took the view that the delay in

producing the samples of contraband substance in Court in the

absence of satisfactory explanation is fatal.

10. The detection was on 25/6/2001. But the contraband

substance and the sample drawn from it were produced only on

12/7/2001. Thus, there is a delay of 17 days. The explanation

offered by PW1, the detecting officer is that the delay was caused

since he was involved in some other cases. The said explanation

offered is not at all satisfactory. That apart, there is no evidence

to show in what condition the contraband articles were kept at

the police station. When there is delay, however short it may be, Crl.Appeal No.1503/2006

in producing the seized contraband substance and the sample

drawn from it at the Court, the prosecution has not only to

explain the delay satisfactorily, but also to prove how and in what

condition the same were preserved during the interregnum

period. The prosecution failed to satisfy this twin conditions.

11. The aforesaid vital aspects were not taken into

consideration by the court below while appreciating the

prosecution case. For the reasons stated above, I am of the view

that the conviction and sentence passed by the court below

suffer from illegality and it cannot be sustained.

In the result, the criminal appeal stands allowed. The

conviction and sentence passed by the court below vide the

impugned judgment are set aside. The appellant is found not

guilty of the offence charged against him and accordingly he is

acquitted. His bail bond is cancelled.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp