IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 CRL.A.No. 1241 of 2002() ------------------------ SC.684/1999 of ADDL.SESSIONS COURT (ADHOC ) II, KASARAGOD .................... APPELLANT(S): ACCUSED: ------------------------------------------ NARAYANA, S/O. KANNAPPAN, ORKATHOTTY, OLIYATHADUKA, KUDLU, KASARAGOD TALUK. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): PROSECUTION: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.V. MANU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.9610/2002 IN CRA.NO.1241/2002 DISMISSED 10/09/2009 SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J ........................................... CRL.A.NO. 1241 OF 2009 ............................................ DATED THIS THE 10TH DAY OF SEPTEMBER, 2009 JUDGMENT The appellant stands convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/- and to suffer default sentence of rigorous imprisonment for one year, he having been found guilty of having committed offences punishable under Section 55(a) of the Abkari Act. 2. PW1, the detecting officer and PW6, Investigating Officer, spoke in terms of the prosecution case. The chemical examiner's report proved that the material sent for examination was arrack. 3. But the most crucial aspect projected by the learned counsel for the appellant assailing the findings of the court of session is that though the accused was produced upon arrest on 1.12.1998, the articles seized from him were sent to the court only on 3.2.1999, and received in court only on 4.2.1999, and verified and returned to custody by the court for verification on that day. This obviously shows, as rightly argued by the learned CRA 1241/2002 2 counsel for the appellant, an unexplained inordinate delay from 1.12.1998 to 4.2.1999. The learned counsel for the appellant relies on a decision of this court in Narayani V Excise Inspector(2002(3) KLT 725). 4. Having gone through the evidence of the detecting officer and the Investigating Officer, there is no shred of evidence on record that the sample and residue were kept in proper custody till the date of production of the same before the court. There is also no evidence on record as to who was in possession of the contraband till it was produced in court. May be, the learned Public Prosecutor is justified in saying that there is no cross examination pointedly on this aspect. But, the duty of the prosecution to satisfy the conscience of the court that there could not have been any reasonable chance of tampering of the samples taken and articles seized, cannot be overcome by any onus being pushed on to the defence to challenge the veracity of the custody. This is particularly because the actual custodian of the contraband and the samples after its seizure till its production before the court is not even spoken of but has to be only presumed. Even if it was to be presumed that those materials CRA 1241/2002 3 were in the police station, I am clear in my mind that the appellant was entitled to the benefit of doubt in that regard and was hence entitled to an order of acquittal. 5. The witnesses to the mahazars and the proof of those mahazars does not gain any significance in the light of the finding arrived at in the preceding paragraph. For the aforesaid reasons, the appeal is allowed and the conviction and sentence are set aside. Bail bonds will stand discharged. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/14/9