Kerala High Court
Saju vs State Of Kerala on 28 June, 2021
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
CRL.A NO. 2243 OF 2006
AGAINST THE JUDGMENT IN SC 451/2005 OF ADDITIONAL DISTRICT AND
SESSIONS COURT (ADHOC), FAST TRACK COURT III, PATHANAMTHITTA
APPELLANT/ACCUSED:
SAJU
S/O THANKAPPAN,
SATHEESH BHAVANAM, MANPILAVU, CHITTAR.
BY ADV M.V.S.NAMPOOTHIRY(SR)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR. PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.2243 of 2006 2
K.BABU, J.
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Crl.A.No.2243 of 2006
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Dated this the 28th of June, 2021
JUDGMENT
Aggrieved by the judgment dated 7.11.2006, passed by the Additional District and Sessions Judge (Adhoc), Fast Track Court III, Pathanamthitta in Sessions Case No.451/2005, the accused has preferred this appeal. The learned trial court convicted the appellant for the offence punishable under Section 8(2) of the Kerala Abkari Act.
2. On 6.2.2004 the appellant was found in possession of 7 litres of arrack in a 10 litre can and a glass tumbler at Manpilavu, Kumaramperoor Vadakkekaramuri in Chittar Seethathodu Village. He was arrested by the Sub Inspector of Police, Chittar Police Station. The police seized 7 litres of illicit arrack and glass tumbler from the possession of the accused. Crl.A.No.2243 of 2006 3 After completion of investigation, final report was submitted against the accused for offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ranni. The case was committed to the Sessions Court, Pathanamthitta from where it was made over to the Additional Sessions Court. On appearance of the accused, charge was framed against the accused for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the aforesaid offence. To prove the case against the accused, the prosecution examined as many as four witnesses. Exts.P1 to P10 were marked. Currency notes, cannas and a glass tumbler were marked as MO1, MO2 and MO3 respectively. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is 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 convicted the Crl.A.No.2243 of 2006 4 accused and sentenced him to undergo imprisonment for a term of one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act.
3. The learned counsel for the accused submitted that the inordinate delay in the production of properties including the sample before the court has not been satisfactorily explained.
4. The learned counsel further submitted that there is lack of evidence to show that the sample allegedly taken at the place of occurrence ultimately reached the Chemical Examiner's laboratory.
5. The learned Public Prosecutor, per contra, contended that materials are sufficient to establish the charge against the accused. She submitted that the delay has been satisfactorily explained.
6. The prosecution case is that the accused was found in possession of seven litres illicit arrack on 6.2.2004 at 11 am at Manpilavu in Thekkekkara Ward in Seethathodu village. According to the prosecution, the accused was arrested from the spot and the contraband articles were recovered from his possession. PW4, the detecting officer, has given evidence that he collected sample from the contraband article seized from the Crl.A.No.2243 of 2006 5 possession of the accused, in two bottles.
7. The learned counsel for the accused contended that there is inordinate delay in the production of the material objects along with the sample before the court. The alleged seizure was on 6.2.2004. Ext.P8, the property list, shows that the material objects reached the court only on 10.2.2006. There is no satisfactory explanation from the part of the detecting officer, who was examined as PW4, regarding the delay in the production of the material objects including the sample before the court. In Ravi v. State of Kerala (2011(3) KHC 121) a Division Bench of this Court held that production of the property before the court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. In the instant case the prosecution miserably failed to advance satisfactory explanation for the delay in the production of the properties before the court. Unexplained delay in production of properties would lead to the conclusion that tampering with the samples could not be ruled out.
8. The learned counsel for the accused further Crl.A.No.2243 of 2006 6 submitted that the prosecution failed to prove that the sample allegedly collected at the scene of occurrence ultimately reached the hands of the Chemical Examiner in a tamper proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. Ext.P9, the copy of the forwarding note is silent regarding the specimen impression of the seal affixed on the bottles containing the sample. The specimen impression of the seal has not been produced and marked. In Ext.P10 certificate of Chemical Analysis it is certified that the seals on the bottles were intact and found tallied with the sample seal provided. On a careful analysis of the materials placed before the court, there is nothing to show that sample seal was placed before the court to be forwarded to the Chemical Examiner's laboratory. Hence the certification in Ext.P10 to the effect that the seals on bottles were intact and found tallied with the sample seal provided, cannot be accepted.
9. There is absolutely no evidence to convince the court that specimen impression of the seal has been provided to the Chemical Examiner. None of the prosecution witnesses have Crl.A.No.2243 of 2006 7 given evidence on those aspects. In Rajamma v. State of Kerala [(2014) 1 KLT 506)], while dealing with the question of lack of evidence regarding the production of specimen seal before the court to be provided to the Chemical Examiner, this Court held as follows:-
"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 PW.1 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."
10. There is also no evidence as to who received the sample bottle from the court and on which date. The prosecution failed to establish these vital aspects, which are imperative to form a link evidence to show that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused reached the Crl.A.No.2243 of 2006 8 hands of the Analyst. In the absence of this link evidence no value can be given to Ext.P10 certificate of chemical analysis.
11. Admittedly the sample changed several hands. The sample was handled by the Thondi Clerk of the court, the police official who received the same from the court and the official who delivered the same to the laboratory. None of these witnesses were examined to prove the tamper proof despatch of the sample to the laboratory.
12. Relying on State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314] this Court in Sasidharan v. State of Kerala [2007(1) KHC 275] held that when sample changed several hands, the prosecution can succeed only if it is established that the same ultimately reached the hands of Chemical Examiner in a tamper proof condition and that it was the same sample, that was drawn from the contraband liquor/arrack allegedly seized from the accused.
13. In the instant case the prosecution miserably failed to establish that the sample reached the hands of the analyst in a tamper proof condition. There is absolutely no link evidence to establish that the sample drawn from the arrack allegedly seized Crl.A.No.2243 of 2006 9 from the possession of the accused eventually reached the hands of the Analyst in a tamper proof condition.
14. The resultant conclusion is that the prosecution failed to establish the case against the accused beyond reasonable doubt. The conviction recorded and the sentence passed by the court below overlooking these important aspects cannot be sustained.
In the result, this appeal is allowed. The appellant is not found guilty of the offence punishable under Section 8(2) of the Abkari Act. The appellant/accused is acquitted. He is set at liberty.
Sd/-
K. BABU JUDGE ab