Kerala High Court: In a Criminal Revision Petition directed against the judgment passed by the Appellate Court to confirm the Trial Court’s decision for matter under Section 8(1) and (2) of Abkari Act, Dr. Kauser Edappagath, J. highlighted the unexplained delay of 8 days in producing contraband articles or the details of condition in which the same were kept and acquitted the petitioner by setting aside the impugned judgment.
As per the prosecution, the petitioner and remaining accused were found in possession of 15 liters of illicit arrack on 2-05-1999, in contravention of the Abkari Act and Rules. After appreciating evidence and due trial, the Court sentenced the accused to undergo rigorous imprisonment for 2 years and a fine of Rs 1 lakh, to suffer simple imprisonment of 6 months in case of default. The Appellate Court confirmed the conviction and sentence, and thus, the instant revision petition.
Regarding absence of sample seal in seizure mahazar, the Court relied upon K. Bhaskaran v. State of Kerala, 2020 SCC OnLine Ker 17388 wherein, the Court held that “the specimen seal shall be provided in the seizure mahazar and in the forwarding note, to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar.” The Court highlighted that the seizure mahazar in the instant matter did not contain the sample seal or even the description of the seal used.
Regarding absence of seal in forwarding note, the Court relied on Smithesh v. State of Kerala, 2018 SCC OnLine Ker 20148 wherein, the Court specified the requirement of specimen of seal affixed on the sample in the forwarding note. The Court explained that “forwarding note is the link evidence to show that the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition.” Further, when seal is absent in the forwarding note, the Court restricted the finding of prosecution having proved beyond reasonable doubt regarding sample taken at the spot of occurrence to have reached the chemical examiner for analysis of tamper proof condition.
Regarding the delay in producing samples of contraband samples before the Court, the Court pointed out that the settled law that unexplained delay in production of contraband substance/samples drawn from it proves fatal to the prosecution case. The Court referred to State of U.P. v. Hansraj, (2018) 18 SCC 355 wherein the Court held that in case of delay in producing contraband samples in the Court and when evidence was kept in the police station, prosecution has a duty to adduce evidence to show details of preserving the same at the police station. The Court further referred to a catena of cases in this regard.
The Court noted that the substances were detected on 2-05-1999, the accused was produced before the Court on 3-05-1999 and the contraband was produced at the Court on 10-05-1999 with an unexplained delay of 8 days and in the absence of any evidence regarding the condition in which they were kept. The Court observed that “When there is delay, however short it may be, in producing the seized contraband substance and the sample drawn from it at the Court, the prosecution has not only to explain the delay satisfactorily, but also to prove how and in what condition the same were preserved during the interregnum period.” The Court highlighted that the prosecution failed to satisfy the twin conditions.
The Court viewed that the conviction and sentence passed by the lower courts suffered from illegality and could not be sustained. The Court set aside the conviction and sentence passed by the Courts through impugned judgments and did not find the petitioner guilty of the offences charged and therefore acquitted him.
[Sabu K. Paul v. SI of Police, 2023 SCC OnLine Ker 5582, Order dated 24-07-2023]
Order by: Dr. Justice Kauser Edappagath
Advocates who appeared in this case :
For Petitioner: Advocate C.A. Chacko, Advocate N.A. Shafeek, Advocate M.S. Unnikrishnan Oasis;
For State: Senior Public Prosecutor S. Rekha.