{"id":115525,"date":"2010-07-22T00:00:00","date_gmt":"2010-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010"},"modified":"2014-04-09T00:21:06","modified_gmt":"2014-04-08T18:51:06","slug":"babu-john-vs-state-of-kerala-on-22-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010","title":{"rendered":"Babu @ John vs State Of Kerala on 22 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Babu @ John vs State Of Kerala on 22 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 467 of 2003()\n\n\n1. BABU @ JOHN, AGED 39 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REP. BY ITS PUBLIC\n                       ...       Respondent\n\n                For Petitioner  :SRI.BABU JOSEPH KURUVATHAZHA\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :22\/07\/2010\n\n O R D E R\n             M.Sasidharan Nambiar, J.\n            --------------------------\n               Crl.A.No.467 of 2003\n            --------------------------\n\n                     JUDGMENT\n<\/pre>\n
    Appellant, the accused in S.C.No.313\/1999 on<\/p>\n
the file of Additional Sessions Court, Kalpetta, is<\/p>\n
challenging the conviction and sentence for the<\/p>\n
offence under Section 55(a) of Abkari Act in this<\/p>\n
appeal. Prosecution case was that on 28.6.l998 at<\/p>\n
about 11.30 a.m., while on patrol duty, PW1, the<\/p>\n
Sub Inspector of Police, along with PW2, the Police<\/p>\n
Constable, got information that illicit arrack is<\/p>\n
being sold on the banks of Chellankode Manikolli<\/p>\n
River. They reached there. Appellant was found<\/p>\n
holding MO1 can and MO2 glass. Finding the police<\/p>\n
party, he tried to run away. PWs 1 and 2 restrained<\/p>\n
him and examined MO1 can, which contained nine<\/p>\n
litres  of   liquid.  On   tasting  and   smelling,<\/p>\n
convincing that it is illicit arrack, PW1 arrested<\/p>\n
the appellant. After preparing Exhibit P1 seizure<\/p>\n
mahazar, he seized MO1 can and in two bottles of<\/p>\n
CRA 467\/03                2<\/span><\/p>\n
375 ml. each, samples were taken and separately<\/p>\n
sealed. The remaining liquid found in MO1 can was<\/p>\n
also sealed. Rs.60\/- found in the pocket of the<\/p>\n
appellant was also seized. Along with the appellant<\/p>\n
and MOs 1 and 2 and the samples, PW1 reached the<\/p>\n
police station. Under Exhibit P2 FIR, he registered<\/p>\n
the crime for the offence under Section 55(a) of<\/p>\n
Abkari Act. Exhibit P1 seizure mahazar and Exhibit<\/p>\n
P2 FIR were sent to the court. Appellant was also<\/p>\n
produced    before   the   learned  Chief   Judicial<\/p>\n
Magistrate. He was remanded. The seized materials<\/p>\n
objects and the samples were also produced. A<\/p>\n
request was submitted to send the samples for<\/p>\n
chemical    analysis. The   samples were  sent   and<\/p>\n
Exhibit P4 certificate of chemical analysis was<\/p>\n
obtained    to  the  effect  that  the samples,  on<\/p>\n
examination, found to contain 22.09% and 23.5% by<\/p>\n
volume    of ethyl  alcohol.  After  completing  the<\/p>\n
investigation,    final report was submitted before<\/p>\n
Chief Judicial Magistrate. The case was committed<\/p>\n
to the Sessions Court and was tried by learned<\/p>\n
CRA 467\/03               3<\/span><\/p>\n
Additional Sessions Judge.\n<\/p>\n
     2.   When the charge  for  the  offence  under<\/p>\n
Section 55(a) of Abkari Act was read over and<\/p>\n
explained to the appellant, he pleaded not guilty.<\/p>\n
On the side of the prosecution, PWs 1 to 4 were<\/p>\n
examined and Exhibits P1 to P4 were marked. MOs 1<\/p>\n
and   2   were identified. When   questioned  under<\/p>\n
Section    313 of   Code  of  Criminal   Procedure,<\/p>\n
appellant contended that he was not in possession<\/p>\n
of the materials objects or the illicit arrack and<\/p>\n
he was caught by the Sub Inspector from Vaduvanchal<\/p>\n
asking him whether he is Orukku Baby and Rs.60\/-,<\/p>\n
which was in his possession, was seized and he has<\/p>\n
not committed any offence. Though appellant was<\/p>\n
called upon to enter on his defence and adduce<\/p>\n
evidence, he did not adduce any evidence.<\/p>\n
     3. Learned Sessions Judge, thereafter, on the<\/p>\n
evidence of PWs 1 and 2, corroborated by Exhibit P1<\/p>\n
seizure   mahazar, found  that  appellant   was  in<\/p>\n
possession of MO1 can containing illicit arrack and<\/p>\n
therefore, convicted him for the offence under<\/p>\n
CRA 467\/03               4<\/span><\/p>\n
Section 55(a) of Abkari Act.\n<\/p>\n
     4.     Appellant would  contend that   learned<\/p>\n
Additional    Sessions  Judge  did   not   properly<\/p>\n
appreciate the evidence and failed to note that<\/p>\n
PW3, the only attesting witness examined, is a<\/p>\n
native    of Tamil  Nadu and  the  other  attesting<\/p>\n
witness, who is a man of that locality, was not<\/p>\n
examined and in such circumstances, evidence of PWs<\/p>\n
1 and 2, the police officials, should not have been<\/p>\n
believed by the learned Additional Sessions Judge.<\/p>\n
It was also argued that in any case, the fact that<\/p>\n
the material objects reached the court on 6.7.1998<\/p>\n
and the request for sending the samples to the<\/p>\n
Laboratory was submitted before the court only on<\/p>\n
7.8.1998 and the evidence of PW1 establishes that<\/p>\n
he is not aware as to who was in custody of the<\/p>\n
contraband articles till they were produced in<\/p>\n
court and in such circumstances, on the ground of<\/p>\n
delay in reaching the samples before the court and<\/p>\n
then sending them for chemical analysis, which are<\/p>\n
fatal, the conviction is to be set aside.   Learned<\/p>\n
CRA 467\/03               5<\/span><\/p>\n
counsel relied on the following decisions of this<\/p>\n
Court in Rajendran v. State of Kerala<\/a> (2007 (1) KLT<\/p>\n
971) and Alex v. State of Kerala<\/a> (2003 (1) KLT SN<\/p>\n
Page 9).\n<\/p>\n
     5. Learned Public Prosecutor submitted that<\/p>\n
there is no reason to disbelieve the evidence of<\/p>\n
PWs 1 and 2 and for the reason that PW3 did not<\/p>\n
support the prosecution case, his evidence cannot<\/p>\n
be disbelieved. It was also argued that even if<\/p>\n
there is delay in producing the material objects<\/p>\n
before the court, unless prejudice was caused by<\/p>\n
the delay, which is to be established by the<\/p>\n
defence,   the delay  is  not  fatal  and  on   the<\/p>\n
evidence, no interfere is warranted.<\/p>\n
     6. Though PW3, one of the attesting witnesses<\/p>\n
to the seizure mahazar, turned hostile to the<\/p>\n
prosecution, PW1, the Sub Inspector of Police and<\/p>\n
PW2, the Police Constable, who was with PW1 at the<\/p>\n
time of seizure, had given evidence with regard to<\/p>\n
possession of MO1 can containing illicit liquor by<\/p>\n
the appellant. The evidence of PWs 1 and 2 is<\/p>\n
CRA 467\/03                6<\/span><\/p>\n
corroborated by Exhibit P1 seizure mahazar, which<\/p>\n
is a contemporaneous record prepared at the time of<\/p>\n
seizure. I have gone through the evidence of PWs 1<\/p>\n
and 2 and find no reason to disbelieve their<\/p>\n
evidence. Evidence of PWs 1 and 2 establish that<\/p>\n
appellant was found at 11.30 a.m. on 28.6.1998,<\/p>\n
possessing MO1 can and MO2 glass.\n<\/p>\n
     7.   Exhibit P3   shows  that  after  MO1   can<\/p>\n
containing the   balance liquor and the samples were<\/p>\n
produced in court, a request was made to the<\/p>\n
learned Magistrate, based on which the samples were<\/p>\n
forwarded for chemical analysis on 7.8.1998. The<\/p>\n
office seal in Exhibit P3 shows that the forwarding<\/p>\n
note was received by the learned Magistrate on<\/p>\n
16.7.1998. Argument of the learned counsel is that<\/p>\n
when the seizure was on 28.6.1998, the request was<\/p>\n
submitted   only  on  16.7.1998  and  there  is  no<\/p>\n
evidence to prove when exactly the samples and the<\/p>\n
material objects were produced in court. Argument<\/p>\n
is based on the ground that the property list was<\/p>\n
not marked. The property list available in the<\/p>\n
CRA 467\/03               7<\/span><\/p>\n
records shows that the properties were received in<\/p>\n
court    on 6.7.1998 as  the  office seal  affixed<\/p>\n
thereon contains the date 6.7.1998. There is an<\/p>\n
order by the Chief Judicial Magistrate to verify<\/p>\n
and receive the same. The properties shown therein<\/p>\n
are MO1 can, MO2 glass and two samples of 375 ml.<\/p>\n
bottle each, which were sealed and six ten rupee<\/p>\n
notes. Learned counsel also pointed out that when<\/p>\n
PW1 was cross-examined, he was asked as to who was<\/p>\n
in possession of the samples before they were<\/p>\n
produced in court and he expressed his ignorance.<\/p>\n
PW4, who verified the investigation conducted by<\/p>\n
PW1, was asked to explain the reason for the delay<\/p>\n
and he did not offer any reason. It is, therefore,<\/p>\n
argued that there is no guarantee that the samples<\/p>\n
prepared and the samples produced in court and<\/p>\n
examined   at  the  Laboratory are  the  same  and<\/p>\n
therefore,   prejudice  has  been  caused to   the<\/p>\n
appellant and on that ground, the conviction is to<\/p>\n
be set aside.\n<\/p>\n
CRA 467\/03               8<\/span><\/p>\n
     8. Learned Public prosecutor, relying on the<\/p>\n
decision of a learned Single Judge of this Court in<\/p>\n
Vikraman v. State of Kerala<\/a> (2007 (1) KLT 1010),<\/p>\n
argued that the delay in producing the samples and<\/p>\n
the material objects did not cause any prejudice<\/p>\n
and   therefore,   on the  ground  of  delay,   the<\/p>\n
conviction cannot be interfered.\n<\/p>\n
     9. Section 36 of Abkari Act provides that all<\/p>\n
searches under the provisions of Abkari Act shall<\/p>\n
be made in accordance with the provisions of Code<\/p>\n
of Criminal Procedure. Sub-section (3) of Section<\/p>\n
102 of Code of Criminal Procedure provides that<\/p>\n
every police officer, acting under sub-section (1),<\/p>\n
shall     forthwith report  the  seizure   to   the<\/p>\n
Magistrate and where the property seized is such<\/p>\n
that it cannot be conveniently transported to the<\/p>\n
court or where there is difficulty in securing<\/p>\n
proper accommodation for custody of such property<\/p>\n
or where continued retention of the property in<\/p>\n
police custody may not be considered necessary for<\/p>\n
the purpose of investigation, may give custody of<\/p>\n
CRA 467\/03               9<\/span><\/p>\n
the property to any person on his executing a bond<\/p>\n
undertaking to produce the property before the<\/p>\n
court as and when required. Therefore, under sub-<\/p>\n
section (1) of Section 102 of Code of Criminal<\/p>\n
Procedure,   any  police  officer  may  seize   any<\/p>\n
property, which may be alleged to have been stolen<\/p>\n
or which may be found under circumstances which<\/p>\n
create suspicion of commission of any offence.<\/p>\n
Under sub-section (3) of Section 102 of Code of<\/p>\n
Criminal procedure, seizure should be reported to<\/p>\n
the    Magistrate forthwith  and  if   it  is  not<\/p>\n
inconvenient to produce the seized articles, it<\/p>\n
shall also be produced forthwith. Paragraph 17 of<\/p>\n
Kerala Excise Manual provides that searches shall<\/p>\n
be made in confirmity with the provisions of Code<\/p>\n
of Criminal procedure. Paragraph 26 of the Manual<\/p>\n
requires the articles seized to be produced before<\/p>\n
the Excise Inspector within twelve hours. Paragraph<\/p>\n
34 provides that one sample should be sent to the<\/p>\n
Magistrate. Paragraph 49 provides that report of<\/p>\n
search and seizure should reach the court within<\/p>\n
CRA 467\/03                10<\/span><\/p>\n
twenty    four hours.  Paragraph 77  provides  that<\/p>\n
whenever the contraband liquor or drug is produced<\/p>\n
in court, court may be requested to send the sample<\/p>\n
thereof to the chemical examiner for analysis.<\/p>\n
     10.   A  learned single  Judge of  this  Court<\/p>\n
considered these provisions in Dominic v. State of<\/p>\n
Kerala<\/a> (1989 (1) KLT 601) and held that when<\/p>\n
Section 36 of Abkari Act and paragraphs 17, 26, 34,<\/p>\n
49   and   77  in  Kerala  Excise Manual  are  read<\/p>\n
together, as they should be, it is clear that<\/p>\n
seizure should be reported to the court forthwith<\/p>\n
and request is to be made for sending the sample<\/p>\n
for analysis immediately. Another learned single<\/p>\n
Judge in Narayani v. Excise Inspector<\/a> (2002 (3) KLT<\/p>\n
725), found that seizure of the liquor in that case<\/p>\n
was on 9.8.1995 and the crime and occurrence report<\/p>\n
was received in court only on 14.9.1995 and the<\/p>\n
material objects were produced on 13.9.1995 and no<\/p>\n
evidence    was  forthcoming  as  to  who  was  in<\/p>\n
possession of the contraband till it was produced<\/p>\n
CRA 467\/03               11<\/span><\/p>\n
in   court.  On  these  facts,  it  was  held   that<\/p>\n
prosecution has not proved that residue and sample<\/p>\n
were kept in proper custody till those items were<\/p>\n
produced in court on 13.9.1995. Therefore, the<\/p>\n
benefit of doubt was given to the accused.<\/p>\n
     11. Another learned single Judge of this Court<\/p>\n
in Alex v. State (2003 (1) KLT SN Page 9), relying<\/p>\n
on the decision in Dominic’s case (supra), held<\/p>\n
that when the contraband articles were not produced<\/p>\n
in court forthwith as provided in paragraphs 17,<\/p>\n
26, 34 and 49 of Excise Manual and request was not<\/p>\n
made immediately as provided under Section 77 of<\/p>\n
Excise Manual, there is no guarantee that the<\/p>\n
sample was not tampered with and the articles<\/p>\n
seized were actually sent for chemical examination.<\/p>\n
     12. Another learned single Judge in Kunhikannan<\/p>\n
v. State (2006 (4) KLT 469) had also occasion to<\/p>\n
consider the question of delay. In that case, the<\/p>\n
seizure was on 20.6.1998 and the contraband article<\/p>\n
was produced before the court after four days.<\/p>\n
CRA 467\/03               12<\/span><\/p>\n
Holding that delay in Narayani’s case (supra) was<\/p>\n
one month and the case of the detecting officer was<\/p>\n
that he produced the articles on the next day and<\/p>\n
the FIR reached the court on the same day and the<\/p>\n
FIR revealed seizure of the contraband article and<\/p>\n
its sampling on the same day, it was held that<\/p>\n
delay of four days in producing the contraband<\/p>\n
article cannot be said to prejudice the accused on<\/p>\n
any count and therefore, did not rely on Narayani’s<\/p>\n
case and Alex’s case (supra) and confirmed the<\/p>\n
conviction.\n<\/p>\n
     13. Another learned single Judge of this Court<\/p>\n
in Damodaran v. Station House Officer (2008 (1) KLT<\/p>\n
SN Page 15), relying on the decision in Narayani’s<\/p>\n
case (supra), held that in the absence of any<\/p>\n
evidence to prove that the residue and the samples<\/p>\n
were kept in proper custody till they were produced<\/p>\n
in   court  and  who  was  in  possession  of   the<\/p>\n
contraband article till it was produced in court,<\/p>\n
chances of tampering with the samples cannot be<\/p>\n
CRA 467\/03                         13<\/span><\/p>\n
ruled out and therefore, held that based on the<\/p>\n
report    of   chemical        analysis      accused      cannot be<\/p>\n
convicted.\n<\/p>\n
     14. Another learned single Judge in Vikraman v.<\/p>\n
State of Kerala<\/a> (2007 (1) KLT 1010) had also<\/p>\n
considered the question of delay. Learned single<\/p>\n
Judge found that the delay in production of the<\/p>\n
contraband article was eighteen days. It was found<\/p>\n
that PW4 had given evidence that the contraband<\/p>\n
articles were in his safe custody in his capacity<\/p>\n
as Station House Officer for those eighteen days<\/p>\n
till    he   produced       them     before      the    court.  His<\/p>\n
Lordship, on those facts, held:\n<\/p>\n<\/p>\n
          “even though the wording of Section 102(3) of<\/p>\n
          Code of Criminal procedure is that the property<\/p>\n
          seized should be forwarded to the court forthwith,<\/p>\n
          the  said   provision    does   not  contain   the<\/p>\n
          consequence of non-compliance. Every delay<\/p>\n
          cannot be fatal to the prosecution especially when<\/p>\n
          there is a satisfactory explanation offered for the<\/p>\n
          delay. If PW4 could be trusted with regarding his<\/p>\n
CRA 467\/03                          14<\/span><\/p>\n
          evidence of detection, there is no reason why PW4<\/p>\n
          should not be believed when he says that until he<\/p>\n
          produced the material objects before the court, they<\/p>\n
          were in his sage custody in his capacity as the<\/p>\n
          Station house Officer. The decision reported in<\/p>\n
          Kunhikannan v. State of Kerala<\/a> (2006(4) KLT<\/p>\n<\/blockquote>\n
          469) fortifies my conclusion that mere delay in<\/p>\n
          forwarding the material objects cannot by itself be<\/p>\n
          fatal to the prosecution.”<\/p><\/blockquote>\n
     15. The facts of Vikraman’s case (supra) reveal<\/p>\n
that though there was a delay of eighteen days in<\/p>\n
producing the contraband articles before the court,<\/p>\n
after its seizure, proper custody of the contraband<\/p>\n
articles, till they were produced in court, was<\/p>\n
satisfactorily explained. When there is proper and<\/p>\n
satisfactory explanation for the custody of the<\/p>\n
contraband articles from the time of seizure till<\/p>\n
they were produced in court, the delay by itself<\/p>\n
will not cause any prejudice. It is, in such<\/p>\n
circumstances, in Vikaraman’s case (supra), learned<\/p>\n
single Judge held that the delay was not fatal. In<\/p>\n
CRA 467\/03               15<\/span><\/p>\n
Kunhikannan’s case (supra), learned single Judge,<\/p>\n
finding that delay is only four days, without<\/p>\n
considering the other aspects, held that mere delay<\/p>\n
without    causing prejudice  is  not   fatal.  The<\/p>\n
question whether there is chance for tampering was<\/p>\n
not considered by the learned single Judge.<\/p>\n
     16. When Section 102(3) of Code of Criminal<\/p>\n
Procedure provides that seizure should be reported<\/p>\n
to the court forthwith and the seized articles<\/p>\n
should also be produced, it cannot be said that the<\/p>\n
delay in producing the contraband articles is to be<\/p>\n
ignored. It is more so when paragraph 26 of Kerala<\/p>\n
Excise Manual mandates that the seized article<\/p>\n
should be produced before the Excise Inspector<\/p>\n
within twelve hours and paragraph 34 mandates that<\/p>\n
the sample should be sent to the Magistrate and<\/p>\n
paragraph 49 provides that report of search and<\/p>\n
seizure should reach the court within twenty four<\/p>\n
hours. True, the delay by itself is not fatal. It<\/p>\n
is for the prosecution to establish that while the<\/p>\n
delay occurred in production of the contraband<\/p>\n
CRA 467\/03              16<\/span><\/p>\n
article, it was in proper custody, ruling out<\/p>\n
possibility of any manipulation or tampering the<\/p>\n
sample. The question is whether there is evidence<\/p>\n
for proper custody of the contraband article from<\/p>\n
the time of seizure till it was produced before the<\/p>\n
court and whether possibility of tampering the<\/p>\n
seized article is ruled out. If there is any<\/p>\n
possibility for tampering and there is delay, it<\/p>\n
cannot be said that delay will not cause prejudice<\/p>\n
to the accused.\n<\/p>\n
     17. The seizure in this case was on 28.6.1998<\/p>\n
at 11.30 a.m. Exhibit P1, the seizure mahazar and<\/p>\n
Exhibit P2, the FIR, reached the court at 3 p.m. on<\/p>\n
the same day as seen from the endorsement of the<\/p>\n
learned Magistrate in Exhibit P2 and the dated<\/p>\n
initial in Exhibit P1. Exhibit P1 shows that from<\/p>\n
the liquor in the seized can, two samples of 375<\/p>\n
ml. bottle were prepared and sealed. The property<\/p>\n
list, by which the seized articles were produced in<\/p>\n
court, was not marked. The property list available<\/p>\n
in the records shows that though it is dated<\/p>\n
CRA 467\/03               17<\/span><\/p>\n
28.6.1998, it reached the court only on 6.7.1998,<\/p>\n
as   the   court  seal  is   dated  6.7.1998.   The<\/p>\n
endorsement   of   the   learned   Chief   Judicial<\/p>\n
Magistrate shows that the contraband articles were<\/p>\n
received in court on 6.7.1998. Therefore, it can<\/p>\n
only be found that the contraband articles seized<\/p>\n
on 28.6.1998 reached the court only on 6.7.1998.<\/p>\n
     18. The question is who has been in custody of<\/p>\n
the articles from 28.6.1998 till they were produced<\/p>\n
before the court on 6.7.1998 and whether there is<\/p>\n
proper explanation for the delay in its production<\/p>\n
in court. The property list does not show the<\/p>\n
reason for the delay. PW1, the Sub Inspector of<\/p>\n
Police, who seized the contraband articles and<\/p>\n
arrested the appellant and registered the case and<\/p>\n
conducted the investigation, was cross-examined as<\/p>\n
to who was in custody of the contraband articles,<\/p>\n
after its seizure, till they were produced in<\/p>\n
court. In chief examination, PW1 deposed that after<\/p>\n
appellant was arrested, along with the contraband<\/p>\n
articles, he reached the police station and Exhibit<\/p>\n
CRA 467\/03              18<\/span><\/p>\n
P2 FIR was prepared and thereafter, he entrusted<\/p>\n
the contraband articles to the Station Writer for<\/p>\n
producing   before  the court.   It  is,  in   such<\/p>\n
circumstances, PW1 was asked as to who has been in<\/p>\n
possession of the contraband articles till they<\/p>\n
were produced in court. PW1 deposed that he cannot<\/p>\n
say when the contraband articles were produced in<\/p>\n
court and who was in possession of the articles<\/p>\n
till they were produced in court and what was the<\/p>\n
reason for the delay in producing the contraband<\/p>\n
articles. PW4 is the Investigation Officer, who<\/p>\n
verified   the  records and  submitted  the   final<\/p>\n
report. PW4 was also asked about the custody and<\/p>\n
the delay in producing the contraband articles. In<\/p>\n
cross-examination, PW4 deposed that it is seen from<\/p>\n
the records that the sample reached the court only<\/p>\n
on 6.7.1998. He also stated that he cannot give any<\/p>\n
explanation for the delay. Therefore, it is to be<\/p>\n
found that there is no evidence as to who has been<\/p>\n
in possession of the contraband articles, including<\/p>\n
the samples, till they were produced in court and<\/p>\n
CRA 467\/03              19<\/span><\/p>\n
whether those articles were kept in safe custody.<\/p>\n
It is seen that Exhibit P3 forwarding note does not<\/p>\n
contain the date on which it was forwarded to the<\/p>\n
Chemical Examiner’s Laboratory. Though Exhibit P4<\/p>\n
report shows that the sample was  found sealed and<\/p>\n
the seal was intact, the forwarding  note does not<\/p>\n
show    that sample seal   was  forwarded  to   the<\/p>\n
Laboratory  containing  signature of  any   of  the<\/p>\n
attesting witnesses or the accused. Therefore, even<\/p>\n
if it is found that the sample which reached the<\/p>\n
Laboratory was sealed, there is no guarantee that<\/p>\n
it is the same seal which was affixed at the scene<\/p>\n
as   deposed  by  PW1.  Moreover,  possibility   of<\/p>\n
tampering with the contraband articles cannot be<\/p>\n
ruled out in the absence of any evidence for safe<\/p>\n
custody till they were produced in court. In such<\/p>\n
circumstances, when there is delay in producing the<\/p>\n
contraband  articles  in  court  and there   is  no<\/p>\n
evidence as to who has been in possession of the<\/p>\n
contraband  articles  and  whether  the  contraband<\/p>\n
articles were kept in safe custody till they were<\/p>\n
CRA 467\/03               20<\/span><\/p>\n
produced in court and possibility of tampering with<\/p>\n
the sample cannot be ruled out, it cannot be said<\/p>\n
that the delay has not caused prejudice to the<\/p>\n
accused and is not fatal. In such circumstances,<\/p>\n
appellant is, at least, entitled to get the benefit<\/p>\n
of doubt.   Hence, the conviction can only be set<\/p>\n
aside.\n<\/p>\n
     Appeal is allowed. Conviction of the appellant<\/p>\n
for the offence under Section 55(a) of Abkari Act<\/p>\n
is set aside. He is found not guilty of the<\/p>\n
offence. He is acquitted. The bail bond executed by<\/p>\n
him stands cancelled.<\/p>\n
\n\n\n\n22nd July, 2010       (M.Sasidharan Nambiar, Judge)\n\ntkv\n\nCRA 467\/03    21\n\n\n\n\n               M.Sasidharan Nambiar, J.\n\n              --------------------------\n\n                Crl.A.No.467 of 2003\n\n              --------------------------\n\n                         JUDGMENT\n\n\n\n\n                    22nd July, 2010\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Babu @ John vs State Of Kerala on 22 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-115525","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nBabu @ John vs State Of Kerala on 22 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Babu @ John vs State Of Kerala on 22 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2010-07-21T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2014-04-08T18:51:06+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"16 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Babu @ John vs State Of Kerala on 22 July, 2010\",\"datePublished\":\"2010-07-21T18:30:00+00:00\",\"dateModified\":\"2014-04-08T18:51:06+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010\"},\"wordCount\":3216,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"High Court\",\"Kerala High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010\",\"name\":\"Babu @ John vs State Of Kerala on 22 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2010-07-21T18:30:00+00:00\",\"dateModified\":\"2014-04-08T18:51:06+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/babu-john-vs-state-of-kerala-on-22-july-2010#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Babu @ John vs State Of Kerala on 22 July, 2010\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Babu @ John vs State Of Kerala on 22 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010","og_locale":"en_US","og_type":"article","og_title":"Babu @ John vs State Of Kerala on 22 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2010-07-21T18:30:00+00:00","article_modified_time":"2014-04-08T18:51:06+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"16 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Babu @ John vs State Of Kerala on 22 July, 2010","datePublished":"2010-07-21T18:30:00+00:00","dateModified":"2014-04-08T18:51:06+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010"},"wordCount":3216,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["High Court","Kerala High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010","url":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010","name":"Babu @ John vs State Of Kerala on 22 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2010-07-21T18:30:00+00:00","dateModified":"2014-04-08T18:51:06+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/babu-john-vs-state-of-kerala-on-22-july-2010#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Babu @ John vs State Of Kerala on 22 July, 2010"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/115525","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=115525"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/115525\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=115525"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=115525"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=115525"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}