Kerala High Court
Thankappan vs State Of Kerala on 4 April, 2024
Crl. Appeal No. 1496/2009 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
CRL.A NO. 1496 OF 2009
JUDGMENT DATED 29.06.2009 IN SC NO.848 OF 2006 & 785 of 2007 OF ADDITIONAL
SESSIONS COURT (ABKARI ACT CASES), KOTTARAKKARA
APPELLANT/ACCUSED NO.2:
THANKAPPAN, S/O. ADICHAN,
THEKKEVILA VEEDU, KARIMPALOOR MURI, PATHANAPURAM, KOLLAM
DISTRICT.
BY ADVS.
SRI.C.RAJENDRAN
SRI.B.CHANDRA LAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY
SUB INSPECTOR, PATHANAPURAM POLICE STATION, THROUGH THE
PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SRI. SANAL. P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2024, THE
COURT ON 04.04.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 1496/2009 :2:
JOHNSON JOHN, J.
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Crl. Appeal No. 1496 of 2009
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Dated this the 4th day of April, 2024.
JUDGMENT
The accused in S.C. No. 848 of 2006 on the file of the Additional
Sessions Judge, Kottarakkara filed this appeal challenging the conviction
and sentence imposed on him for the offence punishable under Section
8(1) and (2) of the Kerala Abkari Act as per the impugned judgment
dated 29.06.2009.
2. The appellant, who is the original second accused, was tried
along with the first accused by clubbing S.C. Nos. 785 of 2007 and 848
of 2006 and as per the impugned common judgment, the appellant/2 nd
accused is sentenced to undergo simple imprisonment for 6 months and
to pay a fine of Rs.1,00,000/- and in default of payment of fine, to
undergo simple imprisonment for 3 months for the offence under Section
8(1) and (2) of the Kerala Abkari Act.
3. The prosecution case is that on 19.01.2004, at 5.25 p.m., the
accused was found in possession of 750 ml. of arrack in a bottle of 1 ½
litre capacity and a glass at Karimpaloor by the Sub Inspector of
Pathanapuram Police Station and party and thereby, committed the
offence as aforesaid.
4. The trial court, after framing charge, examined PWs 1 to 3 and
marked Exhibits P1 to P7 and Mos 1 and 2 from the side of the
prosecution. From the side of the defence, DW1 was examined. After
trial and hearing both sides, the trial court found the accused guilty of
the offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari
Act and imposed the sentence as aforesaid.
5. Heard Sri. C. Rajendran, the learned counsel for the appellant,
and Sri. Sanal P. Raj, the learned Public Prosecutor.
6. The learned counsel for the appellant argued that the Sub
Inspector of Police, who detected the case and conducted the
investigation, has not given evidence as to the nature of the seal affixed
on the contraband articles alleged to be recovered and the sample
bottles and in Exhibit P1 mahazar also, the specimen impression of the
seal used is not affixed and further, there is also nothing in the mahazar
regarding the nature of the seal used. The learned counsel for the
appellant also pointed out that a perusal of Exhibit P5, property list,
would show that the properties reached the court only on 20.02.2004
and that the specimen impression of the seal used is also not affixed in
Exhibit P5 property list or in Exhibit P6, copy of the forwarding note
prepared by the Sub Inspector who detected the case.
7. PWs 1 and 2, the independent witnesses examined by the
prosecution, turned hostile to the prosecution and deposed that they
have not witnessed the occurrence .
8. A perusal of the evidence of PW3, the Sub Inspector who
detected the offence and conducted the investigation, shows that even
though he deposed regarding the occurrence in tune with the
prosecution case, his deposition does not contain the relevant aspects
regarding the nature of the seal used when he had drawn sample from
the contraband seized. In Exhibit P5 property list also, the specimen
impression of the seal is not affixed.
9. The Detecting Officer, who had drawn the sample, had to give
evidence as to the nature of the seal affixed on the bottle containing the
sample, and the specimen impression of the seal used is also required to
be affixed in the seizure mahazar and the property list so as to enable
proper comparison to ensure tamper free collection and production of
sample before the court and the Chemical Examiner's Laboratory. As
noticed earlier, the specimen impression of the seal used is also not seen
affixed in the copy of the forwarding note marked as Exhibit P6.
10. In Sasidharan v. State of Kerala [2007(1) KLT 720], this
Court has held that the prosecution has a duty to prove that it was the
sample taken from the contraband liquor seized from the accused which
had reached the hands of the Chemical Examiner in a fool proof
condition, unless the link evidence of actual sampling and sending the
same in a sealed packet to the Chemical Examiner with a specimen seal
sent separately for tamper proof despatch, the prosecution cannot be
held to have brought home the offence against the appellant.
11. The absence of impression of specimen seal in the mahazar,
property list and forwarding note and the delay in producing the
properties and sample before the court are circumstances to doubt the
identity of the sample drawn and the sample sent for chemical analysis.
As per Exhibit P1 mahazar, the offence was detected and the sample was
drawn on 19.01.2004. But, a perusal of Exhibit P5 property list would
show that the properties reached the court only on 20.02.2004. It
cannot be disputed that the prosecution is duty bound to prove that
there was tamper proof despatch of the sample to show that the sample
taken from the contraband articles seized from the accused was the
sample which reached the hands of the Chemical Examiner. Since the
prosecution failed to prove the same, it cannot be held that the link
evidence was established.
12. Therefore, on a careful re-appreciation of the evidence
available, I find that the prosecution has failed to comply the mandates
necessary to ensure tamper proof collection and despatch of sample and
in that circumstance, it is found that the appellant/accused is entitled for
the benefit of reasonable doubt and therefore, the conviction and
sentence imposed by the trial court against the appellant/accused is
liable to be set aside.
In the result, the appeal is allowed and the conviction and
sentence imposed by the trial court against the appellant/accused is set
aside and he is acquitted of the offence punishable under Section 8(1)
r/w Section 8(2) of the Kerala Abkari Act. The bail bond executed by the
appellant/accused shall stand cancelled and he is set at liberty forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
