Allowed

Podiyan v. State of Kerala

Kerala HC5 Mar 2021CRL.A/998/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal against a conviction for operating an excise shop without proper license. The court acquitted the appellant because the prosecution failed to prove the chain of custody of the seized liquid, citing missing forward notes, unexamined property clerk, and a significant unexplained delay in sending the sample for chemical analysis.

What did the court decide?

Judgment set aside; Appellant acquitted and set at liberty; Bail bonds cancelled.

Podiyan Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE T.R.RAVI

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FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

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CRL.A.No.998 OF 2006

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AGAINST THE ORDER/JUDGMENT IN SC 590/2004 DATED 10-05-2006 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) COURT 1, PATHANAMTHITTA

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AGAINST THE ORDER/JUDGMENT IN CP 24/2004 OF JUDICIAL MAGISTRATE OF

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FIRST CLASS -I, PATHANAMTHITTA

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APPELLANT/ACCUSED:

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PODIYAN S/O.RAMAN, MELEKKUZHI, PARANKIMAMKOOTTATHIL VEEDU, KADAMMANITTA MURI, NARANGANAM VILLAGE, KOZHENCHERRY TALUK.

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BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT. SYLAJA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.998 OF 2006

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JUDGMENT

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The accused in S.C.No.590/2004 on the file of Additional District & Sessions (Adhoc) Court 1, Pathanamthitta has filed this appeal being aggrieved by the judgment dated 10.05.2006 whereby he was found guilty of offence under Section 8(1)&(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of 1,00,000/- and in default of payment of₹ fine to undergo simple imprisonment for 2 years.

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2. The case of the prosecution is that on 08.03.1999 at about 12.30 noon, the accused was found in possession and transporting 7 litres of arrack in a white can of 10 litre capacity. He is stated to have been apprehended by the Preventive Officer and party attached to the Pathanamthitta Excise Enforcement and Anti Narcotic Special Squad, who were on patrol duty. Even though the accused was arrested, since there were no clean, dried and empty

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sample bottles available, with the special squad, the white can seized was, closed, securely fastened, sealed and labelled. PW1 to PW6 were examined on the side of the prosecution and Exts.P1 to P8 were marked. MO1 marked in the court as described in the appendix to the judgment is a white plastic can of about 10 litre capacity, containing 7 litres of arrack. However, it is also stated that the can is damaged and the arrack and the label have been lost. PW4 has given evidence that he had prepared Ext.P6 remand application, Ext.P7 thondy list and a requisition to the Court requesting the court to take suitable quantity of the liquid from the sealed and labelled can, and to forward the sample so taken by the court to the Chemical Examiner's laboratory. He has also stated that the committal court had taken and forwarded the sample for analysis. On the basis of the evidence on record, the court below found that the appellant was guilty of offence and imposed the sentence as stated above. Aggrieved by

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CRL.A.No.998 OF 2006

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the judgment, the accused has preferred this appeal.

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3. Heard Sri.V.Philip Mathews on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

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4. The counsel for the appellant contends that the evidence on record does not conclusively prove that the sample which was subjected to chemical analysis is a sample taken from the contraband article which was produced in court after seizure. Admittedly, no sample had been taken at the time of detecting the offence. As such, if the sample was taken subsequently, after the contraband was produced in Court, the prosecution has to

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necessarily prove that such a sample was taken from the can produced in court and it is the very same sample which was sent for examination. Reliance is

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placed on the judgment in Sasidharan V. State of Kerala [2007 (1) KLT 720] wherein this Court has emphasised the requirements of examining the thondi section clerk (property clerk) so as to establish

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the nexus between the contraband substance and the accused. According to the counsel, the very fact that the Thondi is not actually available before this Court since it is stated to have been lost, makes it all the more important that the evidence is let in by examining the thondi section clerk. It is submitted that the failure to examine the thondi clerk in such situation is fatal to the prosecution.

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5. I find considerable force in the contention put forward by the counsel for the appellant. In this case, neither was the thondy clerk, who was in charge of the MO produced in court examined, nor were any proceedings prepared and produced in the case to show that the sampling was done in the case from the Court. As held in Sasidharan(supra), without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner, the prosecution cannot prove

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the offence against the appellant. Another

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CRL.A.No.998 OF 2006

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contention raised is that the sample reached the Chemical Examiners' lab with considerable delay and such delay is not properly explained, which necessitates that the accused is given the benefit of acquittal.

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6. I have perused the documents produced on the side of the prosecution. I find that even the forwarding note by which request is placed for sending sample for chemical examination has not been marked in this case. The legal position that, failure to produce and mark the forwarding note, is fatal to the prosecution and can lead to acquittal

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of the accused is no longer res integra . See the decisions in Unnikrishnan Nair V. State of Kerala reported in (2020 (3) KHC 455) , Sadasivan @ Para V. State of Kerala reported in (2020 KHC 478) & K.Vijayakumar V. State of Kerala [2016 (3) KHC 38] . 7. There is yet another disturbing fact which is seen from the document Ext.P8, the chemical

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analysis report. It is stated therein that the

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sample was received along with the letter No.TR78/99 dated 11.04.2003 from the Judicial First Class Magistrate Court 1, Pathanamthitta. It is further stated that the sample was received through the Excise Guard named Vijayakumar on 16.04.2003. The incident is alleged to have happened on 08.03.1999. After having produced the contraband before the Court, the concerned officers have sat on the case without any further steps for four long years and it only thereafter that they thought it fit to draw up a forwarding note requesting for the sample to be sent for chemical examination. There is absolutely no explanation for this long delay. It is also not explained as to why there is 5 days delay in transporting the sample from the Court of the Magistrate to the Chemical Examiner. The failure to produce the forwarding note in such circumstances is fatal for the prosecution.

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In the above circumstances, the judgment dated 10.05.2006 in S.C.No.590/2004 on the file of

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CRL.A.No.998 OF 2006

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Additional District & Sessions (Adhoc) Court 1, Pathanamthitta is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant on or his behalf are cancelled. The appeal stands allowed.

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Sd/-

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T.R.RAVI, JUDGE

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Podiyan v. State of Kerala

Case brief

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Podiyan v. State of Kerala

Case brief

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