Kerala High Court
Omanakuttan vs The State Of Kerala on 5 April, 2024
Crl. Appeal No. 264/2010 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.A NO. 264 OF 2010
JUDGMENT DATED 23.01.2010 IN SC NO.541 OF 2006 OF ADDITIONAL DISTRICT &
SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA
APPELLANT/ACCUSED:
OMANAKUTTAN, AGED 44 YEARS,
S/O. KOCHUKUTTY, ARUN BHAVAN, PARAYIL,, CHAVARUKAVU,
V.KOTTAYAM.
BY ADV SRI.S.SHANAVAS KHAN
RESPONDENTS:
THE STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
SRI. SANAL. P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2024, THE COURT ON
05.04.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 264/2010 :2:
JOHNSON JOHN, J.
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Crl. Appeal No. 264 of 2010
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Dated this the 5th day of April, 2024.
JUDGMENT
The accused in S.C. No. 541 of 2006 on the file of the Additional
District and Sessions Judge, (Adhoc) Fast Track Court-I, Pathanamthitta
filed this appeal challenging the conviction and sentence imposed on him
for the offence punishable under Section 8(1) r/w 8 (2) of the Kerala
Abkari Act as per the impugned judgment dated 23.01.2010.
2. The appellant is convicted and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.1,00,000/- and in
default of payment of fine, to undergo rigorous imprisonment for six
months for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari
Act.
3. The prosecution case is that on 01.02.2005, at about 8 p.m.,
while the Sub Inspector of Konni Police Station and party were
conducting law and order patrol duty, they saw the accused standing on
the side of the road at Chavarukavu with a plastic bottle of 2 litre
capacity and on examination, it was found that the bottle contained
1.870 litres of arrack and he is thereby alleged to have committed the
offence as aforesaid.
4. The trial court, after framing charge, examined PWs 1 to 5 and
marked Exhibits P1 to P8 and MO1 from the side of the prosecution and
no evidence was adduced from the side of the defence. 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 Shri. S. Shanavas Khan, 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 pointed out that a perusal of Exhibit P8, Chemical Analysis
Report, would show that the sample forwarded, as per letter dated
23.02.2005 through Police Constable 1838 from the Judicial First Class
Magistrate II Pathanamthitta, has reached the Chemical Examiner's
Laboratory at Thiruvananthapuram only on 18.03.2005 and the
prosecution has not furnished any explanation for the delay. It is also
pointed out that the Investigating Officer has also not affixed the
specimen impression of the seal in Exhibit P6 property list so as to
enable the court for a proper comparison of the contraband items and
the sample collected at the place of occurrence as per Exhibit P2
mahazar.
7. A perusal of the evidence of PW4, 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.
8. It cannot be disputed that 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.
9. 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.
10. I find force in the argument of the learned counsel for the
appellant that the absence of impression of specimen seal in the
mahazar and property list and the inordinate delay in producing the
sample in the Chemical Examiner's Laboratory are circumstances to
doubt the identity of the sample drawn and the sample sent for chemical
analysis. 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.
11. 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 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.
Interlocutory applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
