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2021 Supreme(Online)(KER) 28950
HIGH COURT OF KERALA
K. Babu, J
VAYALALAM JANARDHANAN, S/O. NARAYANAN, – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2000 2007
The prosecution must provide clear evidence of the chain of custody for seized contraband to support a conviction under the Abkari Act.
Headnote:
Abkari - Conviction - Kerala Abkari Act - Sections 8(2), 58 - The court reversed the conviction due to the prosecution's failure to satisfactorily explain the delay in property production and the insufficient evidence linking the sample to the accused.
Fact of the Case:
The accused was found in possession of illicit arrack during a police patrol. The prosecution charged him under the Kerala Abkari Act, but numerous issues arose regarding the evidence and handling of the contraband.
Finding of the Court:
The court found that the prosecution's evidence was insufficient to connect the accused to the contraband due to unexplained delays and lack of proper evidence regarding sample handling.
Issues: Whether the conviction and sentence against the accused were sustainable considering the prosecution's evidence and procedures.
Ratio Decidendi: The prosecution must establish a clear link between the seized contraband and the sample tested, along with satisfactory explanations for any delays that could call the integrity of evidence into question.
Final Decision: The conviction was reversed and the accused was acquitted of the charges.
J U D G M E N T
Challenge in this appeal is to the judgment dated
20.09.2007, passed by the learned Additional Sessions Judge (Adhoc-III), Thalassery in SC.No.145/2002.
2. By the impugned judgment, the appellant was convicted of the offence punishable under Section 8 (2)
of the Kerala Abkari Act .
3. The prosecution case is that on 07.08.2000 at about 05.50 p.m., the accused was found in possession of 2 liters of illicit arrack in a plastic Can at Choolavekkumpara in Keezhur Amsom. The offence was detected by the Sub Inspector of Police, Iritty Police Station.
4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial First Class Magistrate Court, Mattannur.
5. The case was committed to the Sessions Court, Thalassery, from where it was made over to the Additional Sessions Judge (Adhoc-III), Thalassery. On appearance of the accused charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence.
6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 3 and Exts.P1 to P7 and MOs. 1 and 2.
7. After 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 that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8 (2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of six months and to pay a fine of Rs.1,00,000/- under Section 58 of the Abkari Act.
8. Heard Smt.T.Sudhamani, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent.
9. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence:
(a) Prosecution has not satisfactorily explained the delay in the production of the properties including the sample before the court.
(b) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused ultimately reached the Chemical Examiner's laboratory.
(c) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory.
10. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.
11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.
THE POINT
12. PW1, the Sub Inspector of Police, Iritty Police Station, was on patrol duty on 07.08.2000. At about 17:00 hours, on getting reliable information that the accused was engaged in the sale of illicit arrack at Punnad area, the Police team proceeded to there. The accused was found in possession of 2 liters of illicit arrack at the place of occurrence. PW1 seized the contraband substance found in the possession of the accused. He collected 375 ml of arrack from the Can as sample in a bottle and sealed the same. The accused was arrested from the spot. PW1 also seized a glass tumbler possessed by the accused. He prepared Ext.P2 seizure mahazar. PW1 registered FIR No.203/2000 alleging offence under Section 58 of the Abkari Act against the accused.
13. PW2, an independent witness, supported the prosecution version. He testified that he had witnessed the arrest and seizure of the accused from the place of occurrence. PW3, the SI of Police, Ulikkal
