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2021 Supreme(Online)(KER) 10333
HIGH COURT OF KERALA
K. Babu, J
BHASKARAN POKKU – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2961 2008
The prosecution must establish a clear chain of custody for seized substances to ensure evidential integrity, failing which the accused is entitled to acquittal.
Headnote:
Abkari - Conviction - Kerala Abkari Act - Sections 8(2), 55(a) - The court highlighted the need for timely production of seized property and proper chain of custody; failure to establish a link between the seized substance and the laboratory analysis led to acquittal.
Fact of the Case:
The accused was charged under the Kerala Abkari Act for possessing illicit arrack. The prosecution alleged that he was found with 3 liters of contraband but faced challenges regarding the timely production of evidence and proper analysis procedures.
Issues: Whether the conviction of the accused under Section 8(2) of the Abkari Act was sustainable based on the prosecution's evidence.
Ratio Decidendi: The unexplained delay in property production and failure to link the seized sample to the analysis voided the prosecution's case, necessitating acquittal.
Final Decision: The court acquitted the accused of all charges under the Kerala Abkari Act.
J U D G M E N T
Challenge in this appeal is to the judgment dated
24.11.2008, passed by the learned Additional Sessions Judge, (Adhoc-III), Thalassery, in SC.No.121/2004.
2. By the impugned judgment the accused was convicted of the offence punishable under Section 8 (2) of the Kerala Abkari Act .
3. The prosecution case is that on 09.11.2002 at about 18.30 hours, the accused was found in possession of 3 liters of country made arrack at Nedumpoyil in Kolayad Amsom. The offence was detected by the SI of Police, Peravoor.
4. After completion of the investigation, final report was submitted against the accused for the offence punishable under Section 55 (a) of the Abkari Act before the Judicial First Class Magistrate Court, Kuthuparamba.
5. The case was committed to the Sessions Court, Thalassery, from where it was made over to the Trial Court. On appearance of the accused charge was framed against him for the offence punishable under Section 55 (a) 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 4 and Exts.P1 to P8 and MO.1.
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 one year and to pay a fine of Rs.1,00,000/- under Section
8(2) of the Abkari Act.
8. Heard Sri.Jijo Joseph, 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) The inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution.
(b) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis 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 SI of Police, Peravoor Police Station, on 09.11.2002, found the accused carrying a 5 liter black Can at Kolayad. PW1 intercepted the accused and inspected the liquid contained in the Can and found that it contained 3 liters of illicit arrack. PW1 seized the contraband substance found in the possession of the accused, as per Ext.P3 Seizure Mahazar. He collected 750 ml of arrack in 2 bottles (375 ml each) as sample and sealed the same. He registered Ext.P4 FIR against the accused.
13. PWs 2 and 3, the independent witnesses, did not support the prosecution case. PW4, the SI of Police, Kelakam Police Station, conducted investigation. Final report was submitted by the SI of Police Peravoor.
14. The learned counsel for the appellant/accused contended that the inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. PW1, the SI of Police, Peravoor Police Station, admitted that the properties including the sample were produced before the court only on 25.11.2002 due to pressure of work. Ext.P5, the list of properties, sent to the Magistrate would al
