IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 467 of 2003()
1. BABU @ JOHN, AGED 39 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY ITS PUBLIC
... Respondent
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/07/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.A.No.467 of 2003
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JUDGMENT
Appellant, the accused in S.C.No.313/1999 on
the file of Additional Sessions Court, Kalpetta, is
challenging the conviction and sentence for the
offence under Section 55(a) of Abkari Act in this
appeal. Prosecution case was that on 28.6.l998 at
about 11.30 a.m., while on patrol duty, PW1, the
Sub Inspector of Police, along with PW2, the Police
Constable, got information that illicit arrack is
being sold on the banks of Chellankode Manikolli
River. They reached there. Appellant was found
holding MO1 can and MO2 glass. Finding the police
party, he tried to run away. PWs 1 and 2 restrained
him and examined MO1 can, which contained nine
litres of liquid. On tasting and smelling,
convincing that it is illicit arrack, PW1 arrested
the appellant. After preparing Exhibit P1 seizure
mahazar, he seized MO1 can and in two bottles of
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375 ml. each, samples were taken and separately
sealed. The remaining liquid found in MO1 can was
also sealed. Rs.60/- found in the pocket of the
appellant was also seized. Along with the appellant
and MOs 1 and 2 and the samples, PW1 reached the
police station. Under Exhibit P2 FIR, he registered
the crime for the offence under Section 55(a) of
Abkari Act. Exhibit P1 seizure mahazar and Exhibit
P2 FIR were sent to the court. Appellant was also
produced before the learned Chief Judicial
Magistrate. He was remanded. The seized materials
objects and the samples were also produced. A
request was submitted to send the samples for
chemical analysis. The samples were sent and
Exhibit P4 certificate of chemical analysis was
obtained to the effect that the samples, on
examination, found to contain 22.09% and 23.5% by
volume of ethyl alcohol. After completing the
investigation, final report was submitted before
Chief Judicial Magistrate. The case was committed
to the Sessions Court and was tried by learned
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Additional Sessions Judge.
2. When the charge for the offence under
Section 55(a) of Abkari Act was read over and
explained to the appellant, he pleaded not guilty.
On the side of the prosecution, PWs 1 to 4 were
examined and Exhibits P1 to P4 were marked. MOs 1
and 2 were identified. When questioned under
Section 313 of Code of Criminal Procedure,
appellant contended that he was not in possession
of the materials objects or the illicit arrack and
he was caught by the Sub Inspector from Vaduvanchal
asking him whether he is Orukku Baby and Rs.60/-,
which was in his possession, was seized and he has
not committed any offence. Though appellant was
called upon to enter on his defence and adduce
evidence, he did not adduce any evidence.
3. Learned Sessions Judge, thereafter, on the
evidence of PWs 1 and 2, corroborated by Exhibit P1
seizure mahazar, found that appellant was in
possession of MO1 can containing illicit arrack and
therefore, convicted him for the offence under
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Section 55(a) of Abkari Act.
4. Appellant would contend that learned
Additional Sessions Judge did not properly
appreciate the evidence and failed to note that
PW3, the only attesting witness examined, is a
native of Tamil Nadu and the other attesting
witness, who is a man of that locality, was not
examined and in such circumstances, evidence of PWs
1 and 2, the police officials, should not have been
believed by the learned Additional Sessions Judge.
It was also argued that in any case, the fact that
the material objects reached the court on 6.7.1998
and the request for sending the samples to the
Laboratory was submitted before the court only on
7.8.1998 and the evidence of PW1 establishes that
he is not aware as to who was in custody of the
contraband articles till they were produced in
court and in such circumstances, on the ground of
delay in reaching the samples before the court and
then sending them for chemical analysis, which are
fatal, the conviction is to be set aside. Learned
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counsel relied on the following decisions of this
Court in Rajendran v. State of Kerala (2007 (1) KLT
971) and Alex v. State of Kerala (2003 (1) KLT SN
Page 9).
5. Learned Public Prosecutor submitted that
there is no reason to disbelieve the evidence of
PWs 1 and 2 and for the reason that PW3 did not
support the prosecution case, his evidence cannot
be disbelieved. It was also argued that even if
there is delay in producing the material objects
before the court, unless prejudice was caused by
the delay, which is to be established by the
defence, the delay is not fatal and on the
evidence, no interfere is warranted.
6. Though PW3, one of the attesting witnesses
to the seizure mahazar, turned hostile to the
prosecution, PW1, the Sub Inspector of Police and
PW2, the Police Constable, who was with PW1 at the
time of seizure, had given evidence with regard to
possession of MO1 can containing illicit liquor by
the appellant. The evidence of PWs 1 and 2 is
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corroborated by Exhibit P1 seizure mahazar, which
is a contemporaneous record prepared at the time of
seizure. I have gone through the evidence of PWs 1
and 2 and find no reason to disbelieve their
evidence. Evidence of PWs 1 and 2 establish that
appellant was found at 11.30 a.m. on 28.6.1998,
possessing MO1 can and MO2 glass.
7. Exhibit P3 shows that after MO1 can
containing the balance liquor and the samples were
produced in court, a request was made to the
learned Magistrate, based on which the samples were
forwarded for chemical analysis on 7.8.1998. The
office seal in Exhibit P3 shows that the forwarding
note was received by the learned Magistrate on
16.7.1998. Argument of the learned counsel is that
when the seizure was on 28.6.1998, the request was
submitted only on 16.7.1998 and there is no
evidence to prove when exactly the samples and the
material objects were produced in court. Argument
is based on the ground that the property list was
not marked. The property list available in the
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records shows that the properties were received in
court on 6.7.1998 as the office seal affixed
thereon contains the date 6.7.1998. There is an
order by the Chief Judicial Magistrate to verify
and receive the same. The properties shown therein
are MO1 can, MO2 glass and two samples of 375 ml.
bottle each, which were sealed and six ten rupee
notes. Learned counsel also pointed out that when
PW1 was cross-examined, he was asked as to who was
in possession of the samples before they were
produced in court and he expressed his ignorance.
PW4, who verified the investigation conducted by
PW1, was asked to explain the reason for the delay
and he did not offer any reason. It is, therefore,
argued that there is no guarantee that the samples
prepared and the samples produced in court and
examined at the Laboratory are the same and
therefore, prejudice has been caused to the
appellant and on that ground, the conviction is to
be set aside.
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8. Learned Public prosecutor, relying on the
decision of a learned Single Judge of this Court in
Vikraman v. State of Kerala (2007 (1) KLT 1010),
argued that the delay in producing the samples and
the material objects did not cause any prejudice
and therefore, on the ground of delay, the
conviction cannot be interfered.
9. Section 36 of Abkari Act provides that all
searches under the provisions of Abkari Act shall
be made in accordance with the provisions of Code
of Criminal Procedure. Sub-section (3) of Section
102 of Code of Criminal Procedure provides that
every police officer, acting under sub-section (1),
shall forthwith report the seizure to the
Magistrate and where the property seized is such
that it cannot be conveniently transported to the
court or where there is difficulty in securing
proper accommodation for custody of such property
or where continued retention of the property in
police custody may not be considered necessary for
the purpose of investigation, may give custody of
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the property to any person on his executing a bond
undertaking to produce the property before the
court as and when required. Therefore, under sub-
section (1) of Section 102 of Code of Criminal
Procedure, any police officer may seize any
property, which may be alleged to have been stolen
or which may be found under circumstances which
create suspicion of commission of any offence.
Under sub-section (3) of Section 102 of Code of
Criminal procedure, seizure should be reported to
the Magistrate forthwith and if it is not
inconvenient to produce the seized articles, it
shall also be produced forthwith. Paragraph 17 of
Kerala Excise Manual provides that searches shall
be made in confirmity with the provisions of Code
of Criminal procedure. Paragraph 26 of the Manual
requires the articles seized to be produced before
the Excise Inspector within twelve hours. Paragraph
34 provides that one sample should be sent to the
Magistrate. Paragraph 49 provides that report of
search and seizure should reach the court within
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twenty four hours. Paragraph 77 provides that
whenever the contraband liquor or drug is produced
in court, court may be requested to send the sample
thereof to the chemical examiner for analysis.
10. A learned single Judge of this Court
considered these provisions in Dominic v. State of
Kerala (1989 (1) KLT 601) and held that when
Section 36 of Abkari Act and paragraphs 17, 26, 34,
49 and 77 in Kerala Excise Manual are read
together, as they should be, it is clear that
seizure should be reported to the court forthwith
and request is to be made for sending the sample
for analysis immediately. Another learned single
Judge in Narayani v. Excise Inspector (2002 (3) KLT
725), found that seizure of the liquor in that case
was on 9.8.1995 and the crime and occurrence report
was received in court only on 14.9.1995 and the
material objects were produced on 13.9.1995 and no
evidence was forthcoming as to who was in
possession of the contraband till it was produced
CRA 467/03 11
in court. On these facts, it was held that
prosecution has not proved that residue and sample
were kept in proper custody till those items were
produced in court on 13.9.1995. Therefore, the
benefit of doubt was given to the accused.
11. Another learned single Judge of this Court
in Alex v. State (2003 (1) KLT SN Page 9), relying
on the decision in Dominic’s case (supra), held
that when the contraband articles were not produced
in court forthwith as provided in paragraphs 17,
26, 34 and 49 of Excise Manual and request was not
made immediately as provided under Section 77 of
Excise Manual, there is no guarantee that the
sample was not tampered with and the articles
seized were actually sent for chemical examination.
12. Another learned single Judge in Kunhikannan
v. State (2006 (4) KLT 469) had also occasion to
consider the question of delay. In that case, the
seizure was on 20.6.1998 and the contraband article
was produced before the court after four days.
CRA 467/03 12
Holding that delay in Narayani’s case (supra) was
one month and the case of the detecting officer was
that he produced the articles on the next day and
the FIR reached the court on the same day and the
FIR revealed seizure of the contraband article and
its sampling on the same day, it was held that
delay of four days in producing the contraband
article cannot be said to prejudice the accused on
any count and therefore, did not rely on Narayani’s
case and Alex’s case (supra) and confirmed the
conviction.
13. Another learned single Judge of this Court
in Damodaran v. Station House Officer (2008 (1) KLT
SN Page 15), relying on the decision in Narayani’s
case (supra), held that in the absence of any
evidence to prove that the residue and the samples
were kept in proper custody till they were produced
in court and who was in possession of the
contraband article till it was produced in court,
chances of tampering with the samples cannot be
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ruled out and therefore, held that based on the
report of chemical analysis accused cannot be
convicted.
14. Another learned single Judge in Vikraman v.
State of Kerala (2007 (1) KLT 1010) had also
considered the question of delay. Learned single
Judge found that the delay in production of the
contraband article was eighteen days. It was found
that PW4 had given evidence that the contraband
articles were in his safe custody in his capacity
as Station House Officer for those eighteen days
till he produced them before the court. His
Lordship, on those facts, held:
“even though the wording of Section 102(3) of
Code of Criminal procedure is that the property
seized should be forwarded to the court forthwith,
the said provision does not contain the
consequence of non-compliance. Every delay
cannot be fatal to the prosecution especially when
there is a satisfactory explanation offered for the
delay. If PW4 could be trusted with regarding his
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evidence of detection, there is no reason why PW4
should not be believed when he says that until he
produced the material objects before the court, they
were in his sage custody in his capacity as the
Station house Officer. The decision reported in
Kunhikannan v. State of Kerala (2006(4) KLT
469) fortifies my conclusion that mere delay in
forwarding the material objects cannot by itself be
fatal to the prosecution.”
15. The facts of Vikraman’s case (supra) reveal
that though there was a delay of eighteen days in
producing the contraband articles before the court,
after its seizure, proper custody of the contraband
articles, till they were produced in court, was
satisfactorily explained. When there is proper and
satisfactory explanation for the custody of the
contraband articles from the time of seizure till
they were produced in court, the delay by itself
will not cause any prejudice. It is, in such
circumstances, in Vikaraman’s case (supra), learned
single Judge held that the delay was not fatal. In
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Kunhikannan’s case (supra), learned single Judge,
finding that delay is only four days, without
considering the other aspects, held that mere delay
without causing prejudice is not fatal. The
question whether there is chance for tampering was
not considered by the learned single Judge.
16. When Section 102(3) of Code of Criminal
Procedure provides that seizure should be reported
to the court forthwith and the seized articles
should also be produced, it cannot be said that the
delay in producing the contraband articles is to be
ignored. It is more so when paragraph 26 of Kerala
Excise Manual mandates that the seized article
should be produced before the Excise Inspector
within twelve hours and paragraph 34 mandates that
the sample should be sent to the Magistrate and
paragraph 49 provides that report of search and
seizure should reach the court within twenty four
hours. True, the delay by itself is not fatal. It
is for the prosecution to establish that while the
delay occurred in production of the contraband
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article, it was in proper custody, ruling out
possibility of any manipulation or tampering the
sample. The question is whether there is evidence
for proper custody of the contraband article from
the time of seizure till it was produced before the
court and whether possibility of tampering the
seized article is ruled out. If there is any
possibility for tampering and there is delay, it
cannot be said that delay will not cause prejudice
to the accused.
17. The seizure in this case was on 28.6.1998
at 11.30 a.m. Exhibit P1, the seizure mahazar and
Exhibit P2, the FIR, reached the court at 3 p.m. on
the same day as seen from the endorsement of the
learned Magistrate in Exhibit P2 and the dated
initial in Exhibit P1. Exhibit P1 shows that from
the liquor in the seized can, two samples of 375
ml. bottle were prepared and sealed. The property
list, by which the seized articles were produced in
court, was not marked. The property list available
in the records shows that though it is dated
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28.6.1998, it reached the court only on 6.7.1998,
as the court seal is dated 6.7.1998. The
endorsement of the learned Chief Judicial
Magistrate shows that the contraband articles were
received in court on 6.7.1998. Therefore, it can
only be found that the contraband articles seized
on 28.6.1998 reached the court only on 6.7.1998.
18. The question is who has been in custody of
the articles from 28.6.1998 till they were produced
before the court on 6.7.1998 and whether there is
proper explanation for the delay in its production
in court. The property list does not show the
reason for the delay. PW1, the Sub Inspector of
Police, who seized the contraband articles and
arrested the appellant and registered the case and
conducted the investigation, was cross-examined as
to who was in custody of the contraband articles,
after its seizure, till they were produced in
court. In chief examination, PW1 deposed that after
appellant was arrested, along with the contraband
articles, he reached the police station and Exhibit
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P2 FIR was prepared and thereafter, he entrusted
the contraband articles to the Station Writer for
producing before the court. It is, in such
circumstances, PW1 was asked as to who has been in
possession of the contraband articles till they
were produced in court. PW1 deposed that he cannot
say when the contraband articles were produced in
court and who was in possession of the articles
till they were produced in court and what was the
reason for the delay in producing the contraband
articles. PW4 is the Investigation Officer, who
verified the records and submitted the final
report. PW4 was also asked about the custody and
the delay in producing the contraband articles. In
cross-examination, PW4 deposed that it is seen from
the records that the sample reached the court only
on 6.7.1998. He also stated that he cannot give any
explanation for the delay. Therefore, it is to be
found that there is no evidence as to who has been
in possession of the contraband articles, including
the samples, till they were produced in court and
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whether those articles were kept in safe custody.
It is seen that Exhibit P3 forwarding note does not
contain the date on which it was forwarded to the
Chemical Examiner’s Laboratory. Though Exhibit P4
report shows that the sample was found sealed and
the seal was intact, the forwarding note does not
show that sample seal was forwarded to the
Laboratory containing signature of any of the
attesting witnesses or the accused. Therefore, even
if it is found that the sample which reached the
Laboratory was sealed, there is no guarantee that
it is the same seal which was affixed at the scene
as deposed by PW1. Moreover, possibility of
tampering with the contraband articles cannot be
ruled out in the absence of any evidence for safe
custody till they were produced in court. In such
circumstances, when there is delay in producing the
contraband articles in court and there is no
evidence as to who has been in possession of the
contraband articles and whether the contraband
articles were kept in safe custody till they were
CRA 467/03 20
produced in court and possibility of tampering with
the sample cannot be ruled out, it cannot be said
that the delay has not caused prejudice to the
accused and is not fatal. In such circumstances,
appellant is, at least, entitled to get the benefit
of doubt. Hence, the conviction can only be set
aside.
Appeal is allowed. Conviction of the appellant
for the offence under Section 55(a) of Abkari Act
is set aside. He is found not guilty of the
offence. He is acquitted. The bail bond executed by
him stands cancelled.
22nd July, 2010 (M.Sasidharan Nambiar, Judge)
tkv
CRA 467/03 21
M.Sasidharan Nambiar, J.
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Crl.A.No.467 of 2003
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JUDGMENT
22nd July, 2010