Allowed

Sudheer v. State of Kerala

Kerala HC15 Mar 2024CRL.A/785/2009

Case brief

AI extract

What is this about?

Criminal Appeal against conviction for illicit distillation. The High Court acquitted the appellant, holding that the prosecution failed to establish the chain of custody for the seized sample. Due to missing forwarding notes, unproduced seal specimens, and unexplained delays, the Chemical Analysis Report had no evidentiary value.

What did the court decide?

The appellant/accused No.1 was acquitted of the offences punishable under Sections 55(b) and 55(g) of the Abkari Act and set at liberty.

Sudheer Vs State of Kerala — Quashing and FIR | Kerala HC (2024)

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CRL.A NO. 785 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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FRIDAY, THE 15TH DAY OF MARCH 2024 / 25TH PHALGUNA, 1945

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CRL.A NO. 785 OF 2009

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AGAINST THE JUDGMENT DATED 30.03.2009 IN SC NO.296 OF
2008 OF ADDL. SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA

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APPELLANT:

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SUDHEER, S/O.SULAIMAN,
VATTAVILA VEEDU, NEAR PULARI JUNCTION,
EDAMON VILLAGE, PUNALUR,, KOLLAM DIST.
BY ADV SRI.SYAM J SAM

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RESPONDENT:

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STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
THENMALA POLICE STATION, THROUGH THE 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

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15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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CRL.A NO. 785 OF 2009

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K.BABU, J

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 --------------------------------

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Crl.A No.785 of 2009

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 -----------------------------
 Dated this the 15th day of March, 2024

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 Aggrieved by the judgment dated 30.3.2009,

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passed by the Additional Sessions Court, (Abkari
Cases), Kottarakkara in S.C.No.296/2008, accused
No.1 has preferred this appeal.

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2.The Trial Court convicted accused No.1 for

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the offences punishable under Sections 55(b) and
55(g) of the Abkari Act.

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3.The prosecution case is that on 21.11.2002

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at 3.45 pm. the accused were found manufacturing

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arrack using wash and implements for illicit

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distillation at Edamon Muri in violation of the
provisions of the Abkari Act.

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4.After completing the investigation, final

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report was submitted against the accused for the
offences punishable under Sections 55(b) and 55(g) of
the Abkari Act before the Judicial First Class
Magistrate Court I, Punalur. The case was committed

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CRL.A NO. 785 OF 20093

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to the Sessions Court, Kollam from where it was made

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over to the Trial Court. On the appearance of the
accused, charges were framed against them for the
offences punishable under Sections 55(b) and 55(g) of
the Abkari Act. The accused pleaded not guilty to the
charges, and therefore, they came to be tried by the
Trial Court for the aforesaid offences.

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5.The prosecution examined PWs.1 and 2 and
proved Exts.P1 to P5 and MOs 1 to 3.

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6. After the closure of the prosecution

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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

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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 defence, DW1 was examined.
The Trial Court, after hearing the arguments
addressed on both sides, found accused No.1 guilty of

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the offences punishable under Sections 55(b) and
55(g) of the Abkari Act and convicted him thereunder.

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CRL.A NO. 785 OF 20094

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Accused No.2 is acquitted of the offences alleged.

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7.Heard Sri.Syam J. Sam, the learned counsel
for the appellant/ accused No.1 and Sri.G.Sudheer,

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the learned Public Prosecutor for the respondent.

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8. The learned counsel for the appellant

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challenges the judgment of conviction and sentence on
the ground that the prosecution failed to establish

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that the contraband seized from the scene of
occurrence eventually reached the Chemical Examiner's
laboratory.

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9. The learned counsel for the appellant relied

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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 by the prosecution.

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ii)Ext.P1 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)The forwarding note has not been produced
and marked.

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iv)There is no explanation for the custody
of the sample during the interregnum from

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CRL.A NO. 785 OF 20095

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23.12.2002 to 27.12.2002.

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10.The alleged seizure was effected on

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21.11.2002. The properties including the sample were
produced before the Court only on 17.12.2002, which
is evident from Ext.P4 property list. The prosecution
has not offered any proper explanation for the delay.

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11.On the question of delay in production of
the properties, a Division Bench of this Court in
Ravi v. State of 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 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.”

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(Emphasis supplied)

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12.The Division Bench held that production of
the property before the court should take place

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CRL.A NO. 785 OF 20096

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without unnecessary delay and there should be
explanation for the delay when there is delayed
production of the property.

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13.The detecting officer had prepared Ext.P1

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seizure mahazar as a contemporaneous document. The
detecting officer had drawn the sample at the scene
of occurrence. Ext.P1 does not contain the nature and
description of the seal stated to have been affixed
on the bottle containing the sample. No specimen seal
was produced before the Court. There is nothing to
show that the specimen of the seal was forwarded to
the Chemical Examiner for comparison. The forwarding
note has not been produced and marked before the
Court.

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14. In Bhaskaran v. State of Kerala (2020 KHC

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5296), this Court held that the nature of the seal
used by the detecting officer shall be mentioned in
the seizure mahazar and the specimen of the seal
shall be produced in the court so as to enable the
court to satisfy the genuineness of the sample
produced in the court.

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CRL.A NO. 785 OF 20097

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506], this Court held that if the specimen of the
seal affixed on the bottle containing the sample is
not produced before the court and forwarded to the
Chemical Examiner for verification to ensure that the
sample seal so provided is tallying with the seal
affixed on the sample, no evidentiary value can be
attached to the chemical analysis report.

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16.In Ramachandran v. State of Kerala [2021
(1) KLT 793] while dealing with a case in which
forwarding note/requisition for sending sample to the
laboratory was not produced and marked, this Court
held that the prosecution could not establish the
tamper-proof despatch of the sample to the laboratory
as there was no satisfactory link evidence to show
that it was the same sample that was drawn from the
contraband seized eventually reached the Chemical
Examiner's laboratory. In the instant case, the
prosecution was unable to establish the link
connecting the accused with the contraband seized and
the sample analysed in the laboratory.

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17.The prosecution has not given evidence as

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CRL.A NO. 785 OF 2009

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to the date on which the sample was forwarded to the
laboratory. Ext.P5 Certificate of Chemical Analysis
shows that the sample was forwarded to the laboratory
as per letter dated 23.12.2002 of the Judicial First
Class Magistrate Court I, Punalur. Ext.P5 further
shows that the sample was delivered in the laboratory
only on 27.12.2002 through a Police Constable
No.4266. The custody of the sample during the
interregnum from 23.12.2002 to 27.12.2002 has not

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been explained by the prosecution. The sample
remained in the custody of the property clerk and the
police official who delivered the sample in the
laboratory. These officials were not examined by the
prosecution. Non-examination of those officials, who
handled the sample during the course of its transit
from the Court to the laboratory 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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18.In the instant case, the prosecution was
unable to establish the link connecting the accused
with the contraband seized and the sample analysed in

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CRL.A NO. 785 OF 20099

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the laboratory.

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19.Since the prosecution failed to establish
the contraband allegedly seized from the place of
occurrence was subjected to analysis in the
laboratory, Ext.P5 Certificate of Chemical Analysis
has no evidentiary value.

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 20.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, not guilty of the offences
punishable under Sections 55(b) and 55(g) of the
Abkari Act and he is acquitted of the offences
alleged. He is set at liberty.

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The Crl.Appeal is allowed as above.

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K.BABU
 JUDGE

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ab

Sudheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sudheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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