Kerala High Court
Satyan @ Tanker Satyan vs State Of Kerala on 8 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938
CRL.A.No. 1553 of 2004 (C)
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AGAINST THE JUDGMENT IN SC 1096/2002 of ADDITIONAL SESSIONS COURT (FAST
TRACK COURT-I), THIRUVANANTHAPURAM DATED 08-09-2004
APPELLANT/ACCUSED:
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SATYAN @ TANKER SATYAN
S/O.VISWANATHAN, SOUMYA BHAVAN, SREE CHITHIRAVILASOM COLONY,
VAIKKALATHU MURI, ATTIPPRA VILLAGE, THIRUVANANTHAPURAM.
BY ADV.SRI.V. MANOJ KUMAR, LEGAL AID COUNSEL
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
shg/
K.P. JYOTHINDRANATH, J.
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Crl.A.No.1553 of 2004
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Dated this the 9th day of March, 2017
J U D G M E N T
This is an appeal preferred by the accused in S.C.No. 1096/2002 aggrieved by the judgment of conviction and sentence dated 8.9.2004, on the file of the Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram. The conviction is under Section 55 (a) r/w. Section 8 (1) of the Abkari Act. The sentence imposed is rigorous imprisonment for two years and to pay a fine of Rs.1 lakh.
2. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before me that in this case the appellant is entitled for an acquittal on the following grounds.
3. On perusal of the judgment, it can be seen that only four documents are marked on the side of the prosecution. Ext.P4 is nothing but contradictions marked on the statements of witnesses allegedly recorded by the police. The other three documents are mahazar, F.I.R. and Crl.A.No.1553 of 2004 2 chemical analyst report. Thus, it can be seen that there is no forwarding letter/forwarding note. That itself will show that the identity of the sample analysed by the chemical analyst is not proved that of article seized by the police.
4. The next argument advanced by the counsel is that it is not clear when the property was actually despatched to the court. It is the positive case of the counsel that the property was not produced along with the accused. Only when the property list is marked before the court, then only the court can take note of the fact at what point of time it reached at the court. In this case, when the property list is not marked, it cannot be ascertained whether there is any delay in forwarding the article. If there was any delay, it will positively cause prejudice to the accused i.e. the possibility of tampering cannot be ruled out.
5. Finally, the counsel also submitted before me that the attending circumstances in this case also has to be considered. The defence examined DW1 to show that there Crl.A.No.1553 of 2004 3 was animosity for the police to falsely implicate the accused in a case especially when a complaint was filed by the wife of the accused before the Human Rights Commission against the atrocities of the police. Thus it can be seen that here is a case where false implication is therein and further the offence is not proved by the prosecution beyond reasonable doubt by adducing reliable evidence.
6. The learned Public Prosecutor submitted before me that the allegation that the police got animosity towards the accused is incorrect whereas due to a prosecution for a commission of offence under the Abkari Act was initiated by the police, there was animosity for the appellant herein against the police and as such a complaint was made by DW1 against the police with false averments.
7. In this case, the prosecution not even bothered to mark the property list as well as the forwarding note. As the counsel rightfully pointed out when the property list is not before the court, it may not be possible to come to a legitimate conclusion to exclude the delay. The non- Crl.A.No.1553 of 2004 4 marking of the document may be to cover the inordinate delay. Similarly, when the forwarding note is not marked, the court may not be in a position to come to a legitimate conclusion that there is no identity lapse in respect of the samples. While coming to this conclusion, the decisions of this court in Vijayan v. State of Kerala [2016 (1) KLT SN 68 (Case No.67)], Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308] are considered. Keeping the dictum laid down in the above decisions, I have perused the documents in this case. PW1 was the detecting officer who seized the contraband. As per the evidence adduced by him, he proceeded on a reliable information and arrested the accused and a mahazar was prepared and 2 ltrs. of arrack was seized. He registered the F.I.R. and produced the accused before the court on the next day. But no document was produced to substantiate his claim that the article was immediately produced before the court as well as a forwarding note was given to the court to send the articles for chemical analysis.
Crl.A.No.1553 of 2004 5
8. After perusal of the evidence of PW1, I am convinced that the evidence is lacking to establish the link in between the contraband and the analysis report. I have also perused the other evidences adduced by the witnesses and it is found that the independent witnesses are turned hostile. Under such circumstances, it is found that in this case, the appellant will be entitled for benefit of doubt as the forwarding note, property list are not produced before the court to show that the property was produced before the court immediately on arrest as well as the property allegedly sampled from the contraband was actually sent for analysis by the court on a request made by the investigating officer. It is also pointed out before me that there was also a delay in filing charge sheet. It appears that delay will be natural as the final charge can be filed only after getting the analysis report. But considering the totality of the case, it is found that here is a case where the appellant can be given the benefit of doubt. Hence, the conviction and sentence passed by the trial court is hereby set aside. The bail bond, Crl.A.No.1553 of 2004 6 if any, executed by the appellant is cancelled and he is set at liberty.
This Criminal Appeal is allowed as stated above.
Sd/-
K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/