Allowed

Shaju v. State of Kerala

Kerala HC7 Mar 2024CRL.A/744/2009

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against conviction under Section 8(2) of the Abkari Act. The court acquitted the appellant because the prosecution failed to explain the delay in producing seized samples and did not examine officials who handled the chain of custody, creating reasonable doubt about tampering and the link to laboratory analysis.

What did the court decide?

The appellant is found not guilty, acquitted of the offence alleged, and set at liberty.

Shaju Vs State of Kerala — Corruption | Kerala HC (2024)

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Crl.A No.744 of 2009

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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 7TH DAY OF MARCH 2024 / 17TH PHALGUNA, 1945

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CRL.A NO. 744 OF 2009

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AGAINST THE JUDGMENT DATED 04.03.2009 IN SC NO.1228 OF 2006
OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II,
KOZHIKODE
APPELLANT/ACCUSED:

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SHAJU.C.P, S/O.KUTAN,
CHEERAMPARAKKAL, POOLAKKODE AMSOM DESOM,,
KOZHIKODE.
BY ADV SRI.P.V.ANOOP

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RESPONDENT:

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STATE OF KERALA
REPRESENTED 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
07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

Crl.A No.744 of 2009

K.BABU, J

Crl.A No.744 of 2009

-------------------------------------------------Dated this the 7^th day of March, 2024

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Aggrieved by the judgment dated 4.3.2009 passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode in S.C.No.1228/2006, the accused has preferred this appeal.

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The accused has been convicted of the offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1,00,000/-.

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The prosecution case is that on 27.10.2004, at 1.00 p.m.,

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the accused was found carrying 3 litres of arrack at Pooiakkode desom.

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After completing the investigation, final report was

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submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court,

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Kunnamangalam. The case was committed to the Sessions Court, Kozhikode from where it was made over to the Trial Court. On the

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Crl.A No.744 of 2009

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appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused

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pleaded not guilty to the charge levelled against him 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 6 and proved Exts.P1 to P6 and MO1.

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After the closure of prosecution evidence, the 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder.

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Heard Sri.P.V.Anoop, the learned counsel for the

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appellant/accused and Sri.G.Sudheer, the learned Public Prosecutor for the respondent.

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The learned counsel for the appellant challenged the

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Crl.A No.744 of 2009

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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.

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

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i) The inordinate delay in the production of the properties including the sample has not been explained by the prosecution.

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ii) Various officials who handled the sample during its transit 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.

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The alleged seizure was effected on 27.10.2004. The property list made available would show that the Junior Superintendent of the Court received the properties including the sample only on 1.11.2004. There is no proper explanation for the delay in the production of the sample before the Court.

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On the question of delay in production of the properties, a Division Bench of this Court in Ravi v. State of Kerala & another

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Crl.A No.744 of 2009

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(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 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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12. The Division Bench held that production of the property

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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 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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The sample remained in the custody of the property clerk. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P5 Certificate of Chemical

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Crl.A No.744 of 2009

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Analysis would show that the sample reached the laboratory only on 20.11.2004. It was delivered in by an Excise Guard by name Sri.Santhosh.C. The Junior Superintendent of the Court, 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 Rajasthan v. Daulat Ram [AIR(1980)SC 1314].

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Since the prosecution failed to establish that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P5 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. It is the duty of the prosecution to establish that the

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sample seized and that tested are the same.

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Crl.A No.744 of 2009

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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

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and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt.

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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 is, therefore, found not guilty of the 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 appeal is allowed as above.

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Sd/-

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K.BABU JUDGE

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Shaju v. State of Kerala

Case brief

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Shaju v. State of Kerala

Case brief

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