Thomas vs State Of Kerala

The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.

The prosecution allegation is that on 20.10.2010 at about 7.15 p.m., the appellant was found in possession of two litres of arrack, in contravention of the provisions of the Abkari Act.

Heard.

The learned counsel for the appellant has argued that since there was delay in producing the contraband and the samples before the court, the appellant is entitled to be acquitted.

The incident in this case was on 20.10.2010. Ext.P8 is the Property list, which would show that the contraband and the samples were produced before the court only on 23.10.2010. PW4 was the Officer who produced the contraband and the samples before the court. PW4 initially stated that the contraband and the samples were produced before the court along with the appellant on 21.10.2010. However, in cross-examination, PW4 stated that the contraband and the samples were produced before the court only on 23.10.2010. No reason was stated by PW4 for the delay in producing the contraband and the samples before the court. However, a Court question was asked as to why the contraband and the samples could not be produced before the court along with the appellant. Then he stated that the appellant was produced in the residence of the learned Magistrate and hence, the contraband and the samples could not produced along with the accused. It appears that the appellant was produced before the learned Magistrate on 21.10.2010 at 6.45 p.m. The incident was on 20.10.2010 at 7.15 p.m. No evidence was adduced by the prosecution as to why the contraband and the samples could not be produced before the court on 21.10.2010 during court hours. No evidence was also adduced by the prosecution as to why the contraband and the samples could not be produced before the court on 22.10.2010. There is also no evidence to prove the safe custody of the contraband and the samples till their production before the court. The delay as such, is not always fatal to the prosecution case. However, if the delay is not explained, the same is, no doubt, fatal to the prosecution case. In this case, since there was unexplained delay from 20.10.2010 to 23.10.2010 in producing the contraband and the samples before the court, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the appellant, particularly where there is no evidence with regard to the safe custody of the samples till their production before the court. In the said circumstances, there is no satisfactory link evidence to connect the appellant with the samples analysed in the laboratory. Therefore, the conviction and sentence passed by the court below relying on P10 Certificate of Chemical Analysis cannot be sustained and consequently, I set aside the same.

In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.

Needless to state that if the appellant had already deposited any amount before the trial court pursuant to the direction of this court, the appellant is entitled to reimbursement of the said amount from the court concerned.