Allowed

Gopi & Another v. State of Kerala

Kerala HC20 May 2024CRL.A/1351/2011

Case brief

AI extract

What is this about?

Appeal against conviction for possession of 200 litres of wash under Section 55(g) Abkari Act. Unexplained delay in producing the sample before Court, and non-examination of the property clerk and constable who delivered it to the laboratory, broke the chain of custody; acquittal followed.

What did the court decide?

Appellants acquitted of the offence under Section 55(g) Abkari Act and set at liberty.

Gopi & Another Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2024)

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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 K. BABU

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MONDAY, THE 20^TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946

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CRL.A NO. 1351 OF 2011

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AGAINST THE JUDGMENT DATED 07.07.2011 IN SC NO.47 OF 2010 OF

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ADDITIONAL SESSIONS COURT (ADHOC-III), NORTH PARAVUR

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APPELLANTS/ACCUSED 1 & 2:

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1 GOPI, S/O REAVEENDRAN, KARUKASSERY HOUSE, VAVAKKAD, MOOTHAKUNNAM VILLAGE. 2 SUNIL, S/O.SUKUMARAN, MAKKAPARAMBIL HOUSE, KUNJITHAI KARA, VADAKKEKARA VILLAGE. BY ADV SRI.S.RAJEEV

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RESPONDENT/COMPLAINANT/STATE:

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.117/2005 OF VADAKKEKARA POLICE STATION, ERNAKULAM DISTRICT).

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BY ADV

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SRI.G.SUDHEER, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2024,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.A No.1351 of 2011

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K.BABU, J.

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Criminal Appeal No.1351 of 2011

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Dated this the 20^th day of May, 2024

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JUDGMENT

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Aggrieved by the judgment dated 07.07.2011, passed by the Additional District and Sessions Court (Adhoc-III), N.Paravur in S.C.No.47/2010, the appellants/accused has preferred this appeal. The appellants were convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh.

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The prosecution case is that on 12.03.2005 at 3.00 a.m, the accused was found in possession of 200 litres of wash in Vadakkekkara village in violation of the provisions of the Abkari Act.

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After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(g) 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,

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Crl.A No.1351 of 2011

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charge was framed against them for the offence punishable under Section 55(g) 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.

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The prosecution examined PWs 1 to 6 and proved Exts.P1 to P9 and MO1 series.

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After the closure of the prosecution evidence, 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. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants/accused for the aforesaid offence.

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Heard the learned counsel appearing for the appellants/accused and the learned Public Prosecutor appearing for the respondent.

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The learned counsel for the appellants challenges the

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Crl.A No.1351 of 2011

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judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.

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The learned counsel for the appellants relied on the following circumstances to substantiate his contentions:

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(i) The delay in the production of the properties, including the sample, has not

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been satisfactorily explained by the prosecution.

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(ii) The various officials who handled the sample during its transit from the Court to

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the laboratory were not examined by the prosecution.

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The alleged seizure was effected on 12.03.2005. The

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detecting officer had prepared Ext.P1 seizure mahazar. The properties, including the sample, were produced before the Court only on 14.03.2005, as is evident from Exhibit P7 property list. The prosecution has not offered any explanation for the delay in the

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Crl.A No.1351 of 2011

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production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353] , on the question of delay

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in the production of properties, a Division Bench of this Court held as follows:

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“8. We, therefore, answer the reference as follows:

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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. ”

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(Emphasis supplied)

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In Ravis' case (supra) the Division Bench held that production of the

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property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there

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is delayed production of the property.

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There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in

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the production of properties would lead to the conclusion that tampering with the samples could not be ruled out.

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The sample remained in the custody of the property clerk.

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The sample was delivered in the laboratory through a Police

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Crl.A No.1351 of 2011

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Constable No.7363. The property clerk and the Police Constable, who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314].

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Since the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P9 Certificate of Chemical Analysis has no evidentiary value.

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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.

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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

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Crl.A No.1351 of 2011

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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] }.

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In the instant case, the prosecution was unable to

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establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above.

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The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty.

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The Criminal Appeal is allowed as above.

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Sd/K.BABU, JUDGE

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KAS

Gopi & Another v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gopi & Another v. State of Kerala

Case brief

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