Chakkiyodan Suresh vs The S.I. Of Police
2021 Latest Caselaw 18482 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                          CRL.A NO. 2103 OF 2006
  AGAINST THE ORDER/JUDGMENT IN SC 390/2002 OF ADDITIONAL DISTRICT
                  COURT (ADHOC)-III, THALASSERY, KANNUR
APPELLANT/ACCUSED:

           CHAKKIYODAN SURESH,S/O.NANU, VADAKENHALIL HOUSE,
           KAVINMOOLA, SIVAPURAM.

           BY ADV SRI.CIBI THOMAS



RESPONDENTS/COMPLAINANT & STATE:

     1     THE S.I. OF POLICE
           MALOOR POLICE STATION.

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

           BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

           SRI SANGEETH RAJ (PP)


THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2103/2006                       2

                                 JUDGMENT

This appeal has been filed by the sole accused in S.C.No.390/2002 on the

file of the Additional Sessions Judge, Adhoc-III, Thalassery, challenging the

conviction and sentence imposed in a prosecution for an offence punishable

under Section 55(a) of the Abkari Act.

2. The gist of the prosecution case is that the accused was found in

possession of 30 litres of illicit arrack in the banana garden of one Kunhipocker

and therefore, he had committed an offence under Section 55(a) of the Abkari

Act. The detecting officer was the Sub Inspector of Police of Maloor Police

Station and the investigating officer was the Sub Inspector of Kelakam Police

Station. Following investigation, a final report was filed before the Judicial

First Class Magistrate Court, Koothuparamba and was committed to the

Sessions Court for trial and disposal. The charges were framed alleging the

commission of offence under Section 55(a) of the Abkari Act. Following a plea

of not guilty, the trial was conducted and the prosecution examined Pws 1 to 4,

marked Exts.P1 to P7 documents and identified the material object (MO1).

Following closure of prosecution evidence, the appellant/accused was

questioned under Section 313 Cr.P.C. He denied all incriminating

circumstances against him. However, there was no defence evidence. On an

appreciation of the evidence tendered by the prosecution, the Court convicted

the appellant/accused and sentenced to undergo rigorous imprisonment for one

year and to pay a fine of Rs.1 lakh and in default of sentence, to undergo simple

imprisonment for six months. Set off as permissible in law was also permitted.

The conviction was under Section 8(2) of the Abkari Act.

3. The learned counsel for the appellant/accused would submit that

there are three technical issues which would warrant this Court to hold that the

conviction and, consequently, the sentence imposed on the appellant/accused is

unsustainable. Firstly, he submits that the investigation was conducted by the

Sub Inspector of Police of Kelakam Police Station, who has no jurisdiction in the

matter, on the basis of the direction issued by the Circle Inspector of Police and

that in the light of the judgments of this Court in Kunhanna Poojari v.

State of Kerala; 2019(4) KHC 292 and in Mahesh M.K. v. State;

2017(1) KHC 120, the Sub Inspector of Kelakam Police Station has no

authority to investigate the crime and to file a final report. Secondly, he submits

that there is delay in the production of the contraband article before the Court

following its seizure. The incident occurred on 2.10.2001 and it was produced

in Court only on 5.10.2001. He would submit that there is no sufficient

explanation for the delay in producing the contraband article before the Court.

Thirdly, he would submit that, at any rate, the forwarding note does not bear

the sample of the seal affixed on the samples and this constitutes a ground for

acquittal of the appellant/accused as held by this Court in Bhaskaran K. v.

State of Kerala and another; 2020 KHC 5296 and in Ramachandran

v. State of Kerala; 2021 (1) KLT 793.

4. I have heard the learned Public Prosecutor also .

5. Having considered the matter and having perused the records, I am

of the view that this appeal is liable to be allowed on a short point, without going

into any other issue. It is evident that the forwarding note, which was marked

as Ext.P5 does not bear the sample of the seal affixed on the sample sent for

chemical examination. This Court in Bhaskaran (supra) held as follows:-

"21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the 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 (See Achuthan v. State of Kerala: 2016 (1) KLD 391: ILR 2016(2) Ker

145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector: 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014 (1) KLT 506).

22. xxx xxx xxx

23. It is not the case of the prosecution that there was no other officer available to conduct the investigation. It is also not the case of the prosecution that for some other reason PW5 was compelled to conduct the entire investigation and to file final report against the accused. It is a case in which, without any exigencies of the situation, the detecting officer who registered the case himself conducted the entire investigation and filed final report. In view of the infirmities pointed out earlier with regard to the arrest of the accused and the steps taken for forwarding the sample for analysis, the "one man show" conducted by PW5 has definitely caused prejudice to the accused."

In the light of the law laid down by this Court, this appeal is allowed and the

conviction and sentence imposed on the appellant/accused in S.C.

No.390/2002 on the file of the Additional Sessions Judge, Adhoc-III,

Thalassery is set aside. The appellant/accused will stand acquitted.

sd/-

GOPINATH P.

JUDGE acd