Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 30TH DAY OF NOVEMBER 2021/9TH AGRAHAYANA, 1943 CRL.A NO. 1503 OF 2006 AGAINST THE JUDGMENT IN SC 243/2004 OF ADDITIONAL DISTRICT & SESSIONS JUDGE, THIRUVANANTHAPURAM CP 1/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ATTINGAL APPELLANT/1ST ACCUSED: RANJITH S/O.THYAGARAJAN,THADATHARIKATHU VEEDU, NELLANADU VILLAGE,, VENJARAMOODU. BY ADV SRI.SAJU.S.A RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV PUBLIC PROSECUTOR SRI.SANL P.RAJ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-
J U D G M E N T
Dated this the 30th day of November, 2021 This is an appeal filed by the first accused in SC No.243/2004 on the file of the Additional Sessions Court, (Fast Track Court-I), Thiruvananthapuram dated 5/7/2006 convicting the accused u/s 55(a) r/w 8 (2) of the Abkari Act.
2. The prosecution case in short is that on 25/6/2001 at
1.30 p.m., the accused were found in possession of 2½ litres of arrack in MO1 white can having a capacity of 10 litres and MO2 glass for the purpose of sale at the Puthukulam pathway adjacent to the western bund of Puthukulam ela 100 metres east of KSRTC bus stand in Venjaramoodu, Nellanadu village in contravention of the Abkari Act and Rules and thereby committed the offence.
3. On receipt of summons, the accused appeared at the
court below. After hearing both sides, the court below framed charge under Section 55(a) r/w S. 8(1) and (2) of the Abkari Act. The charge was read over and explained to the accused who -:3:- pleaded not guilty. On the side of the prosecution, PWs1 to 5 were examined and Exts. P1 to P5 were marked. MO1 and MOII
were identified. No defence evidence was adduced. On appreciation of the evidence, the court below found the first accused guilty under Section 55(a) r/w S.8(2) of the Abkari Act and he was convicted for the said offence. The second accused was acquitted. The court below sentenced the first accused to undergo rigorous imprisonment for two years and to pay a fine of `1,00,000/-, in default to suffer rigorous imprisonment for one year. The said conviction and sentence are under challenge in this appeal.
4. The counsel for the appellant is reported no more.
Even though one Adv.Thariq Anwar who was the associate of the erstwhile counsel for the appellant appeared and sought time to file vakalath as early as on 10/8/2021, no vakalath is seen filed. Today, nobody represents the appellant. However, I am of the view that the appeal can be disposed of on perusal of the records.
5. Heard the learned Public Prosecutor and perused the records. -:4:-
6. The perusal of the evidence on record would show that
there is lack of evidence to prove that the very same sample which was drawn from the contraband seized from the accused had reached the chemical analyst's laboratory in a tamper proof condition. There is also undue delay in producing the seized contraband substance as well as the sample drawn from it at the court. There is no seal in the forwarding note and seizure mahazar.
7. This Court in K.Bhaskaran v. State of Kerala
(2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said
judgment that the nature of the seal used shall be mentioned in
the seizure mahazar. A perusal of Ext.P1 mahazar would show that it does not contain the sample seal or the description of the seal used.
8. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) has held that the forwarding note must contain the specimen of the seal affixed on the sample. The forwarding note -:5:-
is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. In the absence of seal in the forwarding note, it cannot not be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition.
9. It is settled that the unexplained delay in producing
the contraband substance and the samples drawn from it at the court is fatal to the prosecution case. The Apex Court in State of Uttar Pradesh v. Hansraj @ Hansu [(2018) 18 SCC 355] has
held that when there is delay in producing samples of contraband
substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. A Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court,
-:6:-
the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in Ramankutty v. Excise Inspector [2013 (3) KHC 308] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in Ravi v. State [2018 (4) KLT Online 2056]. Relying on the Division Bench's decision in Ravi (supra), recently, another Single Bench of this Court in Anilkumar v. State of Kerala (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal.
10. The detection was on 25/6/2001. But the contraband substance and the sample drawn from it were produced only on
offered by PW1, the detecting officer is that the delay was caused since he was involved in some other cases. The said explanation offered is not at all satisfactory. That apart, there is no evidence to show in what condition the contraband articles were kept at the police station. When there is delay, however short it may be,
-:7:- in producing the seized contraband substance and the sample drawn from it at the Court, the prosecution has not only to explain the delay satisfactorily, but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution failed to satisfy this twin conditions.
11. The aforesaid vital aspects were not taken into
consideration by the court below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the court below suffer from illegality and it cannot be sustained. In the result, the criminal appeal stands allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellant is found not guilty of the offence charged against him and accordingly he is acquitted. His bail bond is cancelled. Sd/- DR. KAUSER EDAPPAGATH JUDGE Rp