Suseelan vs State Of Kerala

Dr. Kauser Edappagath, J

This revision petition is directed against the judgment dated 15.01.2013 in Crl.A.No.54/2010 on the files of the Additional District and Sessions Court (Adhoc-I), Kollam (for short 'the appellate court') confirming the judgment dated 02.02.2010 in S.C.No.1435/2005 on the files of the Principal Assistant Sessions Court, Kollam (for short 'the trial court'). The revision petitioner is the accused. He faced trial for the offence punishable under Section 55(a) of the Abkari Act.

The prosecution case in short is that on 30.03.1999 at about 7.15 p.m., the revision petitioner was found in possession of 10 litres of illicit arrack in contravention of the Abkari Act and thereby committed the offence.

The prosecution examined PW1 to PW5 and marked Exts.P1 to P8. MO1 and MO2 were identified. No defence evidence was adduced. Considering the evidence on record, the accused/revision petitioner was found guilty and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for 4 years and to pay a fine of ₹1,00,000/-(Rupees one lakh), in default to suffer simple imprisonment for a period of one year. Challenging the conviction and sentence passed by both the courts below, the revision petitioner has approached this Court.

I have heard Sri.Siju Kamalasanan, the learned counsel for the revision petitioner and Smt.S. Rekha, the learned Senior Public Prosecutor.

The learned counsel for the revision petitioner assailed the impugned judgments as illegal and unsustainable mainly on three grounds. (i) Ext.P2 mahazar does not contain the specimen seal or its description. (ii) The prosecution did not produce the forwarding note. (iii) There is an undue delay of 6 days in producing the contraband article before court.

The first point canvassed by the learned counsel is regarding the absence of specimen seal in the 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.P2 mahazar would show that it does not contain the sample seal or the description of the seal used.

The next contention canvassed by the learned counsel for the revision petitioner is regarding the non production of the forwarding note. The learned counsel submitted that mere production of the laboratory report that the sample tested was contraband substance is not sufficient unless and until the forwarding note also is produced. This Court in Gireesh @ Manoj v. State of Kerala[2019 KHC 655] has held that in the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. The forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. Hence, I am of the view that non production of the forwarding note is fatal to the prosecution.

The third contention put forward by the learned counsel for the revision petitioner is regarding the delay in producing the samples of contraband substance at the trial 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.

Coming to the facts of the case, the seizure was on 30.03.1999. Ext.P4 would show that the seized contraband were produced at court only on 06.04.1999. Thus, there is a delay of 6 days. But the said delay is not explained properly. There is also no explanation as to in what condition the seized contraband substance and the samples were kept till it is produced at the court. When there is delay, however short it may be, in producing the seized contraband substance and the sample drawn from it at the Court, the prosecution has not only to explain the delay satisfactorily, but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution failed to satisfy this twin conditions.

The aforesaid vital aspects were not taken into consideration by the courts below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the courts below suffer from illegality and it cannot be sustained.

In the result, the revision petition stands allowed. The conviction and sentence passed by the courts below vide the impugned judgments are set aside. The revision petitioner is found not guilty of the offence charged against him and accordingly he is acquitted. His bail bond is cancelled.