Kerala High Court
Vengadan Narayanan @ Achootty vs State Of Kerala Through The Sub on 8 August, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941
CRL.A.No.361 OF 2008
AGAINST THE JUDGMENT IN SC 436/2003 OF ADDITIONAL SESSIONS
JUDGE,(ADHOC)-III, THALASSERY DATED 01.02.2008
APPELLANT/ACCUSED:
VENGADAN NARAYANAN @ ACHOOTTY
S/O.KORUTTY, MADANDY VEEDU, SIVAPURAM,
K.P.R.NAGAR.
BY ADV. SRI.SUNNY MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA THROUGH THE SUB
INSPECTOR OF POLICE, MALOOR POLICE STATION,,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI. C.M.KAMMAPPU -SR.P.P
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-
2019, THE COURT ON 08-08-2019 PASSED THE FOLLOWING:
Crl.A.No.361/2008
2
R.NARAYANA PISHARADI, J
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Crl.A.No.361 of 2008
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Dated this the 8th day of August, 2019
JUDGMENT
The appellant is the accused in the case S.C.No.436/2003 on the file of the Court of Session, Thalassery. The appeal is filed assailing the conviction entered and sentence passed against him under Section 8(1) read with 8(2) of the Abkari Act, 1077.
2. The prosecution case is that on 26.02.2002, at about 16.30 hours, PW2 Sub Inspector found the appellant at a public place at Sivapuram with a can containing two litres of arrack. PW2 Sub Inspector took two samples of liquid from the can and seized the can containing arrack and the samples as per Ext.P1 mahazar and arrested the appellant at the spot.
3. The appellant pleaded not guilty to the charge framed by the trial court under Section 55(a) of the Abkari Act. The prosecution examined PW1 to PW3 and marked Exts.P1 to P7 and Crl.A.No.361/2008 3 MO1. No evidence was adduced by the appellant. The trial court found the appellant guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month.
4. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records.
5. PW2 is the Sub Inspector who detected the alleged offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW1 is the independent witness examined by the prosecution. He has supported the prosecution case. His evidence, more or less, corroborates the testimony of PW2 on the material particulars of the occurrence.
6. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of a can containing liquid from the Crl.A.No.361/2008 4 possession of the appellant. There is nothing to show that PW2 had falsely implicated the appellant in a case of this nature. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of the can containing liquid from the possession of the appellant.
7. However, seizure of a can containing some liquid from the possession of the appellant does not prove the offence under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act against him. Conviction of the appellant in the case is possible only on proof that the liquid contained in the can was arrack or some other liquor.
8. Ext.P6 is the certificate of chemical analysis conducted in respect of the samples of liquid which were sent for analysis. Ext.P6 certificate shows that the samples of liquid contained ethyl alcohol.
9. Learned counsel for the appellant contended that there is doubt as to whether the very same samples of the liquid taken by PW2 at the spot were produced before the court and sent for Crl.A.No.361/2008 5 chemical analysis and therefore, there is no assurance that Ext.P6 certificate relates to the liquid seized from the can seized from the possession of the appellant. Learned counsel also contended that the can and the samples were produced before the court only on 17.05.2002 and there was inordinate delay in producing the properties in the court.
10. Per contra, learned Public Prosecutor contended that there was strike by the government employees for a long period and it was the reason for the delay in producing the properties before the court. Learned Public Prosecutor would contend that there is nothing to suspect that the samples were tampered with by any person and therefore, there can be no doubt with regard to the fact that Ext.P6 certificate of chemical analysis relates to the liquid contained in the can seized from the possession of the appellant.
11. Ext.P4 is the property list prepared by PW2 for production of the properties before the court. It shows that the can and the samples were produced in the court only on Crl.A.No.361/2008 6 17.05.2002. The occurrence was on 26.02.2002. There was delay of more than two months and three weeks in producing the samples before the court.
12. PW2 has stated that the properties were in his custody till they were produced in the court. He has also given evidence to the effect that, due to the strike of the government employees, it was not possible or practicable to produce the properties in the court immediately after their seizure.
13. A Division Bench of this Court, in Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353, had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that 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 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari manual. It was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the court, Crl.A.No.361/2008 7 but the production of the property before court (whenever it is practicable) should also take place without unnecessary delay. It was further held that there should be explanation for the delay when there is delayed production of the property.
14. In the instant case, the explanation offered for the delay in producing the properties in the court is not convincing or satisfactory. It is not in evidence on which date the strike of the government employees commenced and on which date it ended. There is no evidence as to whether there was delay in production of the properties before the court after the strike ended and if so, what was the extent of such delay. Moreover, the records would show that the appellant/accused was produced before the Magistrate on 27.02.2002 and the seizure mahazar and the first information report were also produced before the court on that date. Then, PW2 could have produced the properties also before the Magistrate on 27.02.2002 and if there was any difficulty for the court to accept the properties then, the reason for it could have been got endorsed on the property list. No such procedure Crl.A.No.361/2008 8 was adopted.
15. Even if the explanation for the delay in producing the properties before the court is accepted as satisfactory, there is another lacuna in the prosecution case. PW1 has given evidence that the sample bottles were sealed at the spot of the occurrence and label, which contained the signature of the witnesses and the accused, was affixed on the sample bottles. The description of the sample bottles given in Ext.P1 mahazar is that the sample bottles had seal and label on them. However, the description of the sample bottles given in Ext.P4 property list and Ext.P5 forwarding note prepared for sending the samples for chemical analysis, does not show that there was any label on them. It creates doubt as to whether the samples produced in the court were the very same samples taken from the liquid contained in the can which was seized from the possession of the appellant.
15. Proof of mere seizure of large quantity of liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section Crl.A.No.361/2008 9 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid allegedly seized from the possession of the accused. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner.
16. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT
353), Joseph v. State of Kerala (2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KHC 778) and Sasidharan v. State of Kerala (2007 (1) KLT 720)]. Authority for this view can also be Crl.A.No.361/2008 10 had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram : AIR 1980 SC 1314 and Valsala v. State of Kerala : AIR 1994 SC 117).
17. The principles mentioned earlier get support also from the very recent decision of the Supreme Court in Vijay Pandey v. State of Uttar Pradesh (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019) wherein it has been held as follows:
"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". (emphasis supplied).
18. The upshot of the discussion above is that the conviction entered and sentence passed against the appellant under Section 8(1) read with 8(2) of the Abkari Act cannot be sustained. The appellant is entitled to be acquitted. Crl.A.No.361/2008 11
19. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The appellant is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by the appellant stands cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr True Copy PS to Judge