Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 19TH DAY OF JANUARY 2023 / 29TH POUSHA, 1944 CRL.A NO. 1083 OF 2008 AGAINST THE JUDGMENT SC 472/2003 OF ADDITIONAL DISTRICT COURT AND SESSIONS COURT, FAST TRACK - III, PALAKKAD APPELLANT/1ST ACCUSED: SANKARAN, KANNANUR HOUSE, PATTITHARA,, ALUR, THRITHALA, OTTAPALAM TALUK. BY ADVS. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENT/COMPLAINANT: STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SMT.REKHA,GP SRI.RAJESH A.,SPL.GP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
----------------------------------------- ------------------------------------------- Dated this the 19th day of January, 2023
JUDGMENT
Aggrieved by the judgment dated 19.04.2008, passed by the Additional Sessions Court, Fast Track Court - III, Palakkad in Sessions Case No.472/2003, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 26.05.2003 at 9.45 a.m,
the appellant and the other accused were found transporting 10 litres of illicit arrack in an autorickshaw bearing registration No.KL.9/H-5209 in front of Thrithala Police Station in violation of the provisions of the Abkari Act.
3. After completing the investigation, final report was
submitted against the accused for the offences punishable under Sections 55(a), 8(2) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 7 and proved Exts. P1 to P9 and MOs 1 to 2.
5. After the closure of the evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C.
were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder. Accused No.2 was acquitted.
6. Heard Sri. E.R.Venkiteswaran, the learned counsel appearing for the appellant and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.
7. The judgment of conviction and sentence is challenged
on the ground that the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.
8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:
(a) The prosecution failed to explain the delay in the production of the sample before the Court after the alleged seizure.
(b) The prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory.
9. The alleged seizure was effected by SI of Police,
Thrithala, [PW7] on 26.05.2003. According to the prosecution, PW7 seized 10 litres of arrack from the possession of the accused at 9.45 a.m.. He had drawn the sample at the scene of occurrence which is evident from Ext.P1 seizure mahazar. The appellant and the other accused were arrested from the scene of occurrence and produced before the Court on 26.05.2003 itself. The detecting officer failed to produce the properties including the sample on 26.05.2003. Ext.P8 property list would show that the sample reached the Court only on 28.05.2003.
10. In Ravi v. State of Kerala [2011 (3) KHC 121], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows:
1. It is not necessary to produce the article seized
under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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)
11. In Ravi's case (supra) the Division Bench 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.
12. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained
delay in the production of properties would lead to the conclusion
that tampering with samples could not be ruled out.
13. The prosecution has not given evidence as to the date
on which the sample was forwarded to the laboratory. PW5, the Junior Superintendent of the Court stated that he had sealed the sample produced by the detecting officer and forwarded the same through a police constable. Ext.P4, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 09.06.2003 of the Judicial First Class Magistrate Court, Pattambi. However, the sample reached the laboratory only on 10.06.2003. The Police Constable who delivered the sample in the laboratory has not been examined as a witness. The
necessary conclusion is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is supported by the decision of the Apex Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)].
14. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569)
the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same.
15. 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 contraband substance said to have been seized from the possession of the accused {Vide:State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}.
16. The prosecution has not succeeded in establishing that
the contraband seized at the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P4, Certificate of Chemical Anaysis has no evidentiary value.
17. In the instant case, the prosecution failed to establish
the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the appellant/accused No.1 is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU JUDGE VPK