IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

WEDNESDAY, THE 8^TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943 CRL.A NO. 2195 OF 2006 AGAINST THE JUDGMENT DATED 20.10.2006 IN S.C.NO.1032/2000 OF ADDITIONAL SESSIONS COURT, FAST TRACK III, THIRUVANANTHAPURAM APPELLANT/ACCUSED:

SWARNAMMA D/O.JANAKI, PLAVILAKOM VEEDU, NEAR PADIKKEVILAKOM TEMPLE,KADINAMKULAM VILLAGE, KADINAMKULAM DESOM.

BY ADV SRI.M.DINESH RESPONDENT/COMPLAINANT:

STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.

BY SRI. SANGEETH RAJ, GOVERNMENT PLEADER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in a prosecution under Sections 8(1) and 8(2) of the Abkari Act in S.C.No.1032 of 2000 on the file of the Additional Sessions Judge, Fast Track - III, Thiruvananthapuram. The gist of the prosecution case is that on 12.02.2000 at about 05.30pm, the appellant/accused was found carrying 43 covers containing 100ml each of arrack enclosed in a plastic cover for sale and thereby committed an offence under the Abkari Act.

2. Following the investigation, a final report was filed before the Judicial First Class Magistrate Court I, Attingal, which was committed to the Court of Sessions for trial. The matter was ultimately made over to the Additional Sessions Judge, Fast Track- III, Thiruvananthapuram. A charge was framed under Sections 55(a), 8(1) and 8(2) of the Abkari Act. On the appellant/accused pleading not guilty, a trial was conducted where the prosecution examined PWs1 to 6 and marked Exts.P1 to P8 documents. MO1 – material object was also identified. Following the closure of prosecution evidence, the accused was examined under Section

313 of the Cr.P.C where she denied every circumstance appearing against her. No defence evidence was adduced. On an analysis of the evidence tendered by the prosecution witnesses, the court convicted the appellant/accused for offences under Sections 8(1) and (2) of the Abkari Act and convicted the appellant/accused to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,00,000/- and in default thereof to undergo simple imprisonment for three months.

3. The learned counsel for the appellant would submit that the appeal is liable to be allowed and the accused acquitted principally on the following three points.

1) There is considerable delay in production of the contraband article before the court. In as much as, though the appellant/accused was apprehended and the contraband article seized on 12.02.2000, the same was produced in court only on 18.02.2000.

2) The samples were drawn by the 'thondi' clerk as can be made out from Ext.P8 (request for drawing samples). That 'thondi' clerk is not an authorized officer under the Abkari Act; and

3) No sample seal has been affixed on the forwarding note.

4. Any unexplained delay for production of sample before the court is a circumstance which leads to a doubt regarding the identity of the sample with the contraband seized from the appellant/accused. See Ravi v. State of Kerala (2011(3)KHC 121). This Court has held that where such delay is unexplained, the accused is entitled to the benefit of doubt and is entitled to be acquitted.

5. Further, the thondi clerk of the Judicial First Class Magistrate Court I, Attingal is not an authorized officer for the purpose of effecting sample. The taking of samples and its despatch for chemical analysis is an important link in establishing the guilt of the accused in offences under the Abkari Act. A perusal of the request for sampling (Ext.P8) submitted by the investigating officer will show that he had requested the court to arrange for samples to be drawn for the purpose of chemical analysis. This is another fatal flaw in the prosecution case. The forwarding note which is also marked together with the request referred to above