Aji vs State Of Kerala

K.Babu, J

Aggrieved by the judgment dated 13.04.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc), Mavelikara in Sessions Case No.353 of 2002, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh.

The prosecution case is that on 27.04.1999 at 1.00 p.m., the accused was found in possession of 4 bottles each containing 750 ml of illicit arrack, at Ennakadu in violation of the provisions of the Abkari Act.

After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) 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 charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. He pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offences.

The prosecution examined PWs 1 to 6 and proved Exts. P1 to P10. MOs 1 to 3.

After the closure of the evidence on behalf of the prosecution, 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 55(a) of the Abkari Act and convicted him thereunder.

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

The learned counsel for the appellant/accused challenged the 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.

The learned counsel for the appellant/accused relied on the following circumstances to establish his contentions:-

(i) Delay in the production of the properties including the sample has not been satisfactorily explained.

(ii) The arrest of the accused as alleged is doubtful.

(iii) The various officials who handled the sample during its transit from the Court to the Laboratory were not examined by the prosecution.

The alleged seizure was effected on 27.04.1999. Exhibit P9, the list of properties shows that the properties, including the sample, were produced before the Court only on 24.11.1999. The prosecution has not offered any explanation for the delay in the 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 in the production of properties, a Division Bench of this Court held as follows:

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

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.”

(Emphasis supplied)

In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property.

There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out.

The case of the prosecution is that the accused was arrested on 27.04.1999, along with the contraband substance. The arrest of the accused is challenged on the ground that the arrest memo contains the number of the crime registered against him. While dealing with a similar fact situation this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus:-

“14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration.

In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)].”

In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P4 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected.

The prosecution has not given any evidence as to the date on which the bottle containing the sample was forwarded to the laboratory. Ext.P10 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 17.12.1999 of the Judicial First Class Magistrate Court-II, Chengannur. Ext.P10 further shows that the bottle containing the samples reached the laboratory on 18.12.1999 through the Police Constable No.2814. The sample remained in the custody of the Property Clerk of the Court from 24.11.1999 to 17.12.1999. The custody of the sample during the period from 24.11.1999 to 17.12.1999 has not been satisfactorily explained. Neither the Property Clerk of the Court nor the Police Constable who delivered the sample to the laboratory was examined by the prosecution to rule out the possibility of the sample being changed or tampered with.

As the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P10 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized.

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 settled that the prosecution in a case of this nature can suceed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample 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]}.

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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above.

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 appellant/accused is acquitted of the offence alleged. He is set at liberty.

The Criminal Appeal is allowed as above.