JUDGMENT

Dated this the 27th day of May, 2022 Aggrieved by the judgment dated 13.08.2007, passed by the Additional Sessions Court, Adhoc-III, Thalassery in Sessions Case No.270/2003, the accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 22.09.2000 at

9.30 p.m., the Sub Inspector of Police, Iritty Police Station, seized 570 litres of spirit kept in a car bearing Reg. No.KRQ/2659 from the possession of the accused. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) 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 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs 1 to 5 and proved Exts .P1 to P9 and MO1 series.

5. 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 under Section 55(a) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 Lakh.

6. Heard Sri.C.P.Peethambaran, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant contended that there was inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 22.09.2000. Ext.P4 property list shows that the bottles containing the sample were produced before the Court only on 29.09.2000. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court.

8. In Ravi v. State of Kerala [2011 (3) KHC 121]

on the question of delay in production of properties, a Division Bench of this Court held thus:

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

1. 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 Crl.Appeal No.1196 of 2006 7

production of the property.”

(Emphasis supplied).”

9. In Ravi's 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.

10. 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 samples could not be ruled out.

11. It is further contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by the officials concerned.

12. The det