Allowed

Reji v. State of Kerala

Kerala HC21 Mar 2024CRL.A/430/2008

Case brief

AI extract

What is this about?

The High Court in criminal appeal set aside the conviction and sentenced the accused under the Abkari Act. The Court acquitted the appellant due to unexplained delays in producing seized arrack samples and failure to examine officials regarding custody, breaking the chain of evidence.

What did the court decide?

The appellant/accused No.1 found not guilty, acquitted of the offence alleged, and set at liberty.

Reji Vs State of Kerala — Service and Employment | Kerala HC (2024)

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CRL.A NO. 430 OF 2008

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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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THURSDAY, THE 21ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946

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CRL.A NO. 430 OF 2008

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AGAINST THE JUDGMENT DATED 30.01.2008 IN SC NO.541 OF 2006 OF
THE ADDL. SESSIONS COURT/SPECIAL COURT (NDPS ACT CASES),
THODUPUZHA
APPELLANT:

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REJI, S/O.KUTTY (JOSEPH)
PALLITHAZHATHU HOUSE, PARATHODE KARA,
KONNATHADI VILLAGE, UDUMBANCHOLA TALUK.
BY ADVS.
SRI.VIJU ABRAHAM
SRI.JOY C. PAUL
SRI.RAINGE KODUVATH

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RESPONDENT:

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

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BY SRI.G.SUDHEER-PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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CRL.A NO. 430 OF 2008

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K.BABU, J

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------------------------------------------------Crl.A No.430 of 2008

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Dated this the 21st day of March, 2024

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J U D G M E N T

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Aggrieved by the judgment dated 30.1.2008, passed by the Additional Sessions Court for NDPS Act Cases, Thodupuzha in S.C. No.541/2006, accused No.1 has preferred this appeal.

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The Trial Court convicted accused No.1 for the offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 lakh.

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The prosecution case is that on 2.2.2002 at 6 pm, the accused were found in possession of two litres of arrack at Parathodu Junction in Udumbanchola.

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After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Adimaly. The case was committed to the

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CRL.A NO. 430 OF 2008

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Sessions Court, Thodupuzha, from where it was made over to the Trial Court. On the appearance of accused No.1, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. Accused No.1 pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.

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The prosecution examined PWs.1 to 7 and proved Exts.P1 to P8 and MOs 1 and 2.

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After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of defence, DW1 was examined and Ext.D1 was marked. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder.

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Heard Sri.K.Rainge, the learned counsel appearing for the appellant/accused No.1 and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent.

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CRL.A NO. 430 OF 20084

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The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband seized from the scene of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:

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i) The inordinate delay in production of the properties including the sample has not been properly explained. ii) Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.

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iii) There is no explanation for the custody of the sample during the interregnum from 18.5.2002 to 2.7.2002.

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The alleged seizure was effected on 2.2.2002. Ext.P6 property list shows that the properties including the sample were produced before the Court only on 13.3.2002. The prosecution has not offered any explanation for the delay in production of the properties before the court. On the question of delay in production

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of the properties, a Division Bench of this Court in Ravi v. State of

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Kerala & another (2011(3) KHC 121) held thus:

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“8( 1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by

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CRL.A NO. 430 OF 2008

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virtue of Section 102(3) Cr.P.C 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)

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The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property.

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In the instant case, there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out.

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Ext.P3 is the seizure mahazar prepared at the scene of occurrence. It does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 18.5.2002. Ext.P8

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CRL.A NO. 430 OF 2008

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further shows that sample reached the laboratory only on 2.7.2002 through an Excise Guard by name Sri.K.S.Surendran. The sample remained in the custody of the property clerk till 18.5.2002. The prosecution has not given any explanation regarding the custody of the sample during the interregnum from 18.5.2002 to 2.7.2002. The property clerk and the Excise Guard who delivered the sample from the Court to 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 Apex Court in State of

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Rajasthan v. Daulat Ram [AIR(1980)SC 1314].

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The resultant conclusion is that the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value.

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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. The appellant/accused No.1 is, therefore, found not guilty of the

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CRL.A NO. 430 OF 2008

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offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty.

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The Crl.Appeal is allowed as above.

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Sd/-

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K.BABU JUDGE

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Reji v. State of Kerala

Case brief

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Reji v. State of Kerala

Case brief

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