Kerala High Court
Chandran @ Sahadevan vs The Sub Inspector Of Police on 23 July, 2021
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
CRL.A NO. 2327 OF 2008
AGAINST THE JUDGMENT IN SC.NO.457/2002 OF THE ADDITIONAL
SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA, KOLLAM
APPELLANT/ACCUSED:
CHANDRAN @ SAHADEVAN
S/O. SANKARAN, KADAPPAL CHERRY MELATHIL,
THRIPPILAZHIKOM MURI, KAREEPRA VILLAGE,
KOTTARAKKARA TALUK, KOLLAM DISTRICT.
BY ADV SRI.M.K.CHANDRA MOHANDAS
RESPONDENT/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE
EZHUKONE, KOLLAM.
2 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-682031.
BY SRI. M.S. BREEZ (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.2327 of 2008
2
K. BABU J.
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Crl.A.No.2327 of 2008
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Dated this the 23rd day of July, 2021
J U D G M E N T
Aggrieved by the judgment dated 10.09.2008, passed by the learned Additional Sessions Judge (Abkari Cases), Kottarakkara in SC.No.457/2002, the accused has preferred this appeal.
2. The trial court convicted the accused for the offences punishable under Sections 55(a) and 55(i) of the Kerala Abkari Act.
3. The prosecution case is that on 19.10.1999 at about 06.30 p.m., the accused was found in possession of 5 liters of illicit arrack for the purpose of sale at Kuzhimathicadu.
4. The final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the Judicial First Crl.A.No.2327 of 2008 3 Class Magistrate Court-I, Kottarakkara.
5. The case was committed to the Sessions Court, Kollam, from where it was made over to the Trial Court. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences.
6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P5 and Mos. 1 and 2.
7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is Crl.A.No.2327 of 2008 4 guilty of offence under Sections 55(a) and (i) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year each and to pay a fine of Rs.1,00,000/-each under Sections 55(a) and 55(i) of the Abkari Act.
8. Heard Sri.M.K.Chandramohan Das, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent.
9. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence:
(a) The inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution.
(b) The prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory.Crl.A.No.2327 of 2008 5
10. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.
11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. THE POINT
12. PW4, the Sub Inspector of Police, Ezhukone, detected the offence. He has given evidence that on 19.10.1999 at about 06.30 p.m., the accused was found in possession of about 5 liters of illicit arrack for the purpose of sale at Kuzhimathicadu. The accused was arrested from the spot by PW4. PW4 seized the contraband substance found in the possession of the accused. He had collected 375 ml of arrack in two bottles as sample and sealed the same. PW4 prepared Ext.P1 seizure mahazar. PW3, a Police Constable, who had accompanied PW4, has given evidence in support of the version given by PW4.
13. PWs 1 and 2, the independent witnesses, examined to prove the incident proper, did not support the Crl.A.No.2327 of 2008 6 prosecution case. PW4 conducted investigation and submitted final report before the Court against the accused.
14. Learned counsel for the appellant/accused contended that the inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. PW4, the detecting Officer, admitted that the properties allegedly seized from the place of occurrence were produced before the Court only on 22.01.2000. Ext.P4, the list of properties, sent to the Magistrate also shows that the properties were produced before the court only on 22.01.2000. The explanation of PW4 is that the properties were in his safe custody during this period.
15. On the question of delay in the production of the properties, the Division Bench of this Court in Ravi v. State of Kerala & another [2011 (3) KHC 121] held thus:
"1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate "forthwith" either by virtue of Section Crl.A.No.2327 of 2008 7 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property." (Emphasis supplied)
16. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is no satisfactory explanation for the delay in production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out.
17. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the sample stated to have been drawn from the contraband substance at the place of occurrence eventually was subjected to analysis at the Chemical Examiner's laboratory.
Crl.A.No.2327 of 20088
18. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions:
(a) The inordinate delay in the production of properties before the court has not been satisfactorily explained.
(b) The official witnesses have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample.
(c) Ext.P1, seizure mahazar, is silent regarding the nature and description of the seal said to have been used.
(d) There is no evidence to show that the specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner's laboratory.
19. PW4, the detecting officer and PW3, the Police official, who had accompanied him in the search and seizure, have not given evidence as to the nature and description of the seal affixed on the bottles containing Crl.A.No.2327 of 2008 9 the sample. Ext.P1, seizure mahazar, is silent regarding the nature and description of the seal stated to have been affixed on the bottles containing the sample.
20. The specimen impression of the seal affixed on the bottle containing the sample had not been produced before the court. There is also no evidence to show that the specimen impression of the seal had been forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided was tallying with the seal affixed on the bottle containing the sample.
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 affixed on the bottle containing the sample is required to be forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the bottle containing the sample. [vide: Bhaskaran v. State Crl.A.No.2327 of 2008 10 of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191), Majeedkutty v. Excise Inspector [(2015) 1 KHC 424] and Achuthan v. State of Kerala [ILR 2016 (2) Ker. 145]].
22. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same had been provided to the Chemical Examiner. The copy of the forwarding note, which contains the specimen impression of the seal used and the name of the official with whom the sample was entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in this case.
23. In Ramachandran v. State of Kerala [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus:
"Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands Crl.A.No.2327 of 2008 11 in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt."
24. In Rajamma v. State of Kerala [2014 (1) KLT 506], this Court held thus:
"The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant".
25. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P5 chemical analysis report.
26. This Court is in the dark as to the name of the Crl.A.No.2327 of 2008 12 official who actually received the sample from the court. There is also no evidence as to the date on which the sample was handed over to the Police official concerned. In such a situation, it was imperative for the prosecution to examine the Thondi Clerk of the court or the Police official concerned to establish tamper proof despatch of the sample from the court to the laboratory. (vide: Viswanathan v. State of Kerala [(2016) 3 KHC 38], Kumaran v. State of Kerala [2016 (4) KLT 718]).
27. It is admitted case of the prosecution that the sample remained in the custody of the Thondi Clerk of the court, the Police official who received the same from the court and the Police official who delivered the sample to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period, a fact which had to be proved affirmatively by the Crl.A.No.2327 of 2008 13 prosecution. ((vide: State of Rajasthan v. Daulat Ram [(1980) 3) SCC 303], Sathi v. State of Kerala [2007 (1) KHC 778], Sasidharan v. State of Kerala [2007 (1) KLT 720]).
28. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related.
29. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused.
30. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt Crl.A.No.2327 of 2008 14 arising from the absence of link evidence as discussed above.
31. The trial court passed the impugned judgment of conviction and sentence overlooking these vital aspects of the matter. The judgment of conviction and sentence is liable to be set aside. The appellant/accused is therefore not guilty of the offence punishable under Sections 55(a) and (i) of the Abkari Act. He is acquitted of the charges levelled against him. He is set at liberty.
The Crl.Appeal is allowed as above.
Sd/-
K. BABU, JUDGE AS