Full Judgment
CRL.A.489/08 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941 CRL.A.No.489 OF 2008 AGAINST THE ORDER/JUDGMENT IN SC 642/2001 DATED 07-02-2008 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA
APPELLANT/S: GOPI S/O AYYAN,SUBHASH VILASOM, PARAMCODU MURI,, ILAMADU VILLAGE, KOLLAM DISTRICT. BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN RESPONDENT/S: 1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE SUB INSPECTOR ,POOYAPPALLY POLICE STATION, POOYAPPALLY, KOLLAM DISTRICT. OTHER PRESENT: BY SR.PP.JAYASURYA B. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.489/08 2
V.G.ARUN, J.
----------------------------------------------- Crl.A.No.489 of 2008 ----------------------------------------------- Dated this the 14th day of February, 2020
JUDGMENT
The sole accused in S.C.No.642 of 2001 of the Additional Sessions Court (Abkari Act Cases), Kottarakkara, who stands convicted and sentenced for the offence under Section 55(a) and (i) of the Abkari Act, has filed this appeal.
2. The prosecution allegations against the accused, as urged before the trial court are as follows: That, on 18.12.1999 at 2 P.M., the accused was found in
possession and engaged in the sale of arrack on the edavazhi leading to Kannukalikadavu Paramkodu. The Excise party consisting of PW3 and other officials had apprehended the accused while he was indulging in the sale of arrack from a five litre can consisting of two litres of arrack, using a draining glass. After ascertaining that the liquid contained in the said can was arrack, sample was drawn and the accused arrested.
3. Before the trial court, the prosecution examined PWs 1 to 3, PWs 1 and 2 being the attesting witnesses and PW3, the detecting officer. Further, Exhibits P1 to P5 were marked and MO1 to MO3
CRL.A.489/08 3 identified. The accused denied the incriminating circumstances put to him, while eliciting his statement under Section 313 Cr.P.C and examined DW1, a neighbour, in support of his contention that no incident, as alleged by the prosecution had occurred on 18.12.1999.
4. On a consideration of the evidence, oral and documentary, the
trial court came to the conclusion that the prosecution had succeeded in proving that the accused was found in possession of and attempting to sell illicit arrack, and hence guilty of the offence under Section 55(a) and (i) of the Act and proceeded to impose the sentence of simple imprisonment for one year and fine of Rs.1 lakh for each offence and in default, to undergo simple imprisonment for six months.
5. Heard Sri.Alexander George, learned counsel for the appellant and Sri.B.Jayasurya, learned Senior Public Prosecutor.
6. Learned counsel for the appellant submits that evidence
tendered by the prosecution before the trial court was totally insufficient to find the appellant guilty. Drawing attention to Exhibit P1 Scene Mahazar, it is submitted that the manner in which the sample was drawn and sealed, was contrary to the prescribed procedure. It is submitted that even though the occurrence was on 18.12.1999 and the sample taken on the same day, the sample was produced before the trial court only on 14.1.2000, for which no explanation was offered. It is also submitted that even the forwarding note was not produced in evidence to substantiate the fact that the sample was kept intact in
CRL.A.489/08 4 the sealed condition and produced as such before the trial court. It is submitted that endorsement in Exhibit P4 would show that due to paucity of space, the material objects were returned to the safe custody of the Investigating Officer.
7. A perusal of the impugned judgment shows that the learned Sessions Judge had dealt with the question of delay in producing the
sample drawn from the contraband article at paragraph 14. It was held
that as per Exhibit P4 property list, the sample was produced before the court on 14.1.2000, without unnecessary delay, as provided under Section 40(2) of the Abkari Act (for short, 'the Act') and that the testimony of PW3 would reveal that it was kept in proper custody. The principles laid down by this court in Narayani v. Excise Inspector [2002(3) KLT 725] and Vikraman v. State of Kerala [2007(1) KLT 1010] was referred, to hold that there was no chance of tampering, causing prejudice to the accused.
8. in his testimony, all that PW3, the detecting officer, had stated,
with regard to the delay in producing the material object before the court, was that till production 14.1.2000, the material object was in his personal custody. In my considered opinion, the explanation offered by the detecting officer is insufficient to get over the delay of 27 days and to prove that till production in the court, the sample was in safe custody. The finding of the trial court that, on production of the sample drawn from the contraband article before court on 14.1.2000, it was
CRL.A.489/08 5 returned for want of space, cannot also be accepted as an explanation for the delay from 18.12.1999 to 14.1.2000. It has been consistently
held by this Court that the unexplained delay in producing the sample
would be fatal to the prosecution and would entail in acquittal of the accused (see Sukumaran v. State of Kerala [2019 (3) KLT 920] and Chandran @ Chandrasekharan v. State [2016(4) KLT 727]). Added to this is the fact that the forwarding note was not produced or marked before the trial court. This is another fatal irregularity which has the effect of vitiating the trial. In the absence of forwarding note being produced or marked in evidence, it cannot be held that the prosecution had proved beyond reasonable doubt the fact that the very same sample taken at the spot of occurrence had reached the chemical examiner in a tamper proof condition (see Gireesh @ Manoj v. State of Kerlaa [2019(4) KLT 79] and Prakasan v. State of Kerala [2016(1) KLD 311]).
9. On a reading of the decisions relied on by the trial court, it is
seen that in Narayani (supra), it was held that in the absence of proof regarding proper custody of the residue and the sample and proof regarding production of the sample before the court, the contention regarding possibility of tampering cannot be ruled out. The decision in Vikraman (supra) was overruled in Subash v. State of Kerala [2008(2) KLT 1047], though on a different point. The plethora of decisions, after Vikraman (supra), to the effect that delay
CRL.A.489/08 6 in production of sample and inadequacy of proof regarding proper custody of the sample till production, compel me to follow the later decisions. For the above reasons, I am unable to sustain the finding of the trial court that the prosecution had succeeded in proving the accused guilty of the offences alleged. In the result, the criminal appeal is allowed and the appellant is acquitted. The bail bond executed by the appellant will stand cancelled. The trial court is directed to destroy MO1 to MO3 retained in its custody. Sd/- V.G.ARUN, JUDGE vgs