S.Jayapalan @ Balan vs State Of Kerala

Dr. Kauser Edappagath, J

This is an appeal filed by the accused Nos. 1 and 2 in S.C.No.203/2006 on the file of Additional Sessions Court, (Adhoc-I), Palakkad (for short ‘the court below') against the judgment dated 26/09/2008 convicting and sentencing them under Section 55(a) of the Abkari Act.

The prosecution case, in short, is that on 19/01/2002 at about 4.20 hours, the accused Nos. 1 and 2 were found in possession and transportation of 7000 litres of spirit in 200 cans in the lorry bearing Registration No. TN 45 J 2273 at the National Highway of Kannannur Junction in violation of the provisions of the Kerala Abkari Act and Rules and thereby committed the offence.

The accused Nos. 1 and 2 appeared at the court below, and charge under Section 55 (a) of the Abkari Act was framed against them. They pleaded not guilty. On the side of the prosecution, PWs 1 to 3 were examined and Exts. P1 to P11 were marked. MO 1 to MO 4 were identified. After trial, the court below found the accused Nos. 1 and 2 guilty for the offence punishable under Section 55 (a) of the Abkari Act, and they were convicted for the said offence. They were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.2,00,000/- (Rupees Two Lakhs only) in default to suffer rigorous imprisonment for two years as per the impugned judgment. The said conviction and sentence are under challenge in this appeal.

Since there was no continuous representation for the appellants, I have appointed Sri.Mohammed Nihad as Amicus Curiae. I place on record the appreciation for the able assistance rendered by the learned Amicus Curiae.

I have heard Sri. Mohammed Nihad, the learned Amicus Curiae as well as Smt.Rekha.S., the learned Senior Public Prosecutor.

The learned counsel assailed the finding of guilt passed against the appellants as illegal and unsustainable, mainly on two grounds. (i) The seizure mahazar does not contain the sample seal or its description and (ii) There is an undue delay of 11 days in producing the seized contraband articles as well as the sample drawn by the detecting officer before the Court.

The learned Public Prosecutor, on the other hand, supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.

The first point canvassed by the learned counsel is regarding the absence of sample seal in the seizure mahazar. This Court in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 mahazar would show that it does not contain the sample seal or the description of the seal used.

The next point canvassed by the learned counsel is regarding the undue delay of 11 days in producing the seized contraband articles as well as the sample drawn by the detecting officer before the Court. It is settled that the unexplained delay in producing the contraband substance and the samples drawn from it at the court is fatal to the prosecution case. The Apex Court in State of Uttar Pradesh v. Hansraj @ Hansu [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. A Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in Ramankutty v. Excise Inspector [2013 (3) KHC 308] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in Ravi v. State of Kerala [2018 (4) KLT Online 2056]. Relying on the Division Bench's decision in Ravi (supra), recently, another Single Bench of this Court in Anilkumar v. State of Kerala (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal.

The detection was on 19/01/2002. Ext.P1 is the seizure mahazar. Ext.P9 series are the property list. It would show that the seized contraband articles, as well as the sample drawn from it, were produced at the Court only on 30/01/2002. PW1 is the detecting officer. PW3 is the investigating officer. PW1 simply stated that the contraband articles were produced at the Court at a later point of time. No date is mentioned. PW3 stated that the contraband articles were kept at the Police Station under the custody of a guard. It is only a vague statement. There is no convincing evidence to show as to where and under what condition those contraband articles were kept till those were produced at the Court. Moreover, as rightly argued by the learned counsel, the so-called guard has not been examined.

The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution case. Hence, I am of the view that the conviction and sentence passed by the court below suffer from illegally and it cannot be sustained. Accordingly, the conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellants are found not guilty of the offences charged against them and accordingly, they are acquitted. Their bail bonds are cancelled.

The Crl.Appeal is allowed.