IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 CRL.A.No. 467 of 2003 ------------------------------------ SC.313/1999 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT/ACCUSED: BABU @ JOHN, AGED 39 YEARS, S/O.JOY @ CHERIYAN, CHELLANKODE P.O., VADUVANCHAL, WAYANAD DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT/COMPLAINANT: STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.P. 2751/2003 IN CRA 467/2003 DISMISSED 22.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.467 of 2003 -------------------------- 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 CRA 467/03 2 375 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 CRA 467/03 3 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 CRA 467/03 4 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 CRA 467/03 5 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 CRA 467/03 6 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 CRA 467/03 7 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. CRA 467/03 8 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 CRA 467/03 9 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 CRA 467/03 10 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 CRA 467/03 13 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 CRA 467/03 14 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 CRA 467/03 15 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 CRA 467/03 16 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 CRA 467/03 17 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 CRA 467/03 18 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 CRA 467/03 19 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. -------------------------- Crl.A.No.467 of 2003 -------------------------- JUDGMENT 22nd July, 2010