Aji v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944 ``` ``` CRL.A NO. 2289 OF 2007 AGAINST THE JUDGMENT CP 62/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR SC 673/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ``` ## **`ERNAKULAM`** ## **`APPELLANT/ACCUSED NO.2:`** ``` AJI, AGED 34 YEARS, S/O AUGUSTINE PULICKAL HOUSE, PANJIPPALLA KARA, PUTHENVELIKKARA VILLAGE, ERNAKULAM DISTRICT. BY ADVS. SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA CIRCLE INSPECTOR OF POLICE, VADAKKEKKARA, POLICE STATION, ERNAKULAM DISTRICT,, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY SENIOR GOVERMENT PLEADER SMT. REKHA ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2289 OF 2007 ``` ..2.. ## **JUDGMENT** This appeal arises from judgment dated 21.11.2007 passed by the Additional Sessions Judge, Adhoc – II, Ernakulam in S.C.No.673 of 2005. Accused No.2 is the appellant. 2. The prosecution case is that on 07.08.2004, at about 6.30 p.m, the appellant/accused No.2 and the other accused were found to have stored 109 litres of spirit unauthorisedly in the dicky of an ambassador car bearing registration No.KL9-9945 in the courtyard of the residence of accused No.1. Appellant/accused No.2 was arrested from the spot. 3. After completing investigation, final report was submitted against the accused alleging offence punishable under Section 8(2) of the Abkari Act before the Jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused, charge was framed against them for the offence punishable ``` CRL.A NO. 2289 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P15 and MOs 1 and 2 series. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. DW1 was examined on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused No.2 guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. Accused Nos.1 and 3 were acquitted. 6. Heard Sri.Nireesh Mathew, the learned counsel ``` CRL.A NO. 2289 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** appearing for the appellant/accused No.2 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds: a. The arrest of the accused as alleged by the prosecution is doubtful. b. The prosecution has not succeeded in establishing that the spirit allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant/accused No.2 contended that the very arrest of the appellant/accused is doubtful in view of the presence of the crime number in Ext.P9 arrest memo. Ext.P9 contains the number of the crime registered against the appellant. While dealing with a similar fact situation, this Court in **Santhosh v. State of Kerala** [2021(5) KHC ``` CRL.A NO. 2289 OF 2007 ``` ..5.. ## 214], held as follows: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)].” 9. The prosecution has not offered any explanation for the presence of the crime number in Ext.P9 arrest memo. This creates doubt as to the manner in which seizure and arrest were effected. The learned counsel for the appellant further contended that the prosecution ``` CRL.A NO. 2289 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** failed to establish that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The learned counsel relied on the following circumstances to substantiate his contentions: (i)The delay in the production of the properties including the sample has not been satisfactorily explained. (ii)There is nothing to show that the specimen of the seal used by the Detecting Officer was produced before the Court to ensure the genuineness of the sample. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner‘s Laboratory for verification. 10. The alleged seizure was effected on 07.08.2004. Ext.P13 property list shows that the properties including the sample were produced before the Court only on ``` CRL.A NO. 2289 OF 2007 ``` ..7.. 09.08.2004. PW8, the Investigating Officer has not given any explanation as to the delay in the production of the properties including the sample before the Court. 11. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 12. There is no satisfactory explanation for the delay in the production of properties before the Court. ``` CRL.A NO. 2289 OF 2007 ``` ..8.. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 13. The Detecting Officer had not produced the specimen of the seal used at the time of sampling before the Court to ensure the genuineness of the sample. Ext.P2 seizure mahazar does not contain the nature of the seal stated to have been affixed on the bottle containing the sample. PW8, the Detecting Officer has not given evidence as to the nature of the seal used. Ext.P14 forwarding note contains a seal which is not comprehensible and legible. 14. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 15. In **Rajamma v. State of Kerala** [2014 (1) KLT ``` CRL.A NO. 2289 OF 2007 ``` ..9.. 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 16. As the prosecution has failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P15 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 17. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 58 of the Abkari Act. ``` CRL.A NO. 2289 OF 2007 ``` ..10.. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; - (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj