Ambika Roadarikathu Veedu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** **CRL.A NO. 1626 OF 2007** **AGAINST THE JUDGMENT IN SC 1921/2001 OF ADDITIONAL S.C.FOR TRIAL OF ABKARI ACT CASES, NEYYATTINKARA** ## **APPELLANT/S:** AMBIKA ROADARIKATHU VEEDU, KUTTICHAL,, KOKKUDI MURI, MANNOORKARA VILLAGE. BY ADV SRI.BLAZE K.JOSE ## **RESPONDENT/S:** STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, REPRESENTED BY SUB INSPECTOR OF POLICE,, NEYYARDAM POLICE STATION. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal. 1626/2007 2 ## **JUDGMENT** Dated this the 13[th] day of July, 2022 This appeal arises from the judgment dated 03.08.2007 passed by the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara in S.C. No. 1921 of 2001. The appellant/accused was convicted for the offence punishable under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 15.05.1998, the accused was found in possession of 1 ½ litres of arrack at the back side of her house at Kakkidi Muri in Mannoorkkara village, in contravention of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, Crl.Appeal. 1626/2007 3 from where it was made over to the trial Court. On the appearance of the accused, charge was framed against her for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 5, and proved Exts.P1 to P9 and M.Os.1 and 2. 5. After the closure of the prosecution evidence, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found the evidence against the accused and hence, she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The trial Court, after hearing the arguments on both sides found the accused guilty of the offence punishable under Section 58 of the Abkari Act and convicted her thereunder. Crl.Appeal. 1626/2007 4 6. Heard Sri. Blaze K. Jose, the learned counsel for the appellant and Smt. Rekha S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: (1) The prosecution failed to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. - (2) The arrest of the accused is doubtful. (3) The act of the learned Magistrate by giving direction to the property clerk to draw the sample from the contraband produced before the Court is not a procedure established by law. 8. The case of the prosecution is that the accused was arrested along with the contraband substance on 15.05.1998 from the place of occurrence. The learned counsel for the Crl.Appeal. 1626/2007 5 accused contended that, the prosecution failed to establish the arrest of the accused as alleged, relying on the ground that the detecting officer had not prepared the arrest memo and arrest intimation. 9. In _**D.K.Basu v. State of West Bengal**_ [(1997) 1 SCC 416], the Apex Court directed that in all cases of arrest, preparation of 'arrest memo' is a mandatory requirement. The Apex Court directed that the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest, and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been Crl.Appeal. 1626/2007 6 arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 10. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed before the court. The necessary inference is that the 'arrest memo' and 'arrest intimation' were not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The noncompliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. Where the prosecution has failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to the ground. 11. This Court in _**Ramankutty v. Excise Inspector, Chelannur Range**_ [2013 (3) KHC 308] had considered a similar fact situation. This Court held that non-compliance of mandatory requirements to be complied with at the time of Crl.Appeal. 1626/2007 7 arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore, in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 12. The genuineness of the contraband produced before the Court is also under challenge. The learned counsel for the appellant submitted that there is nothing on record to show that the specimen of the seal affixed on the cans containing the arrack was produced before the Court. The detecting officer had also not given evidence as to the nature of the seal used at the time of production of properties before the Court. The specimen impression of the seal used by the detecting officer is essential to enable the Court to ascertain the genuineness of the contraband produced before the Court. 13. In _**Bhaskaran v. State of Kerala**_ (2020 KHC 5296), this Court held that the nature of the seal used by the Crl.Appeal. 1626/2007 8 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. 14. The act of drawing sample by the property clerk at the request of the detecting officer is also under challenge. It is seen that the learned Magistrate orally authorised the property clerk of the Court to draw the sample from the contraband produced by the detecting officer. The legality of the procedure adopted by the learned Magistrate in drawing sample was considered by this Court in **Baburaj v. State of Kerala** (2021 (6) KHC 92). In the said decision, this Court held as follows: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in _**Smithesh v. State of Kerala**_ [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In _**Baby v. State of Kerala**_ [2020 (2) KLT 590], this Court had an occasion to Crl.Appeal. 1626/2007 9 consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” (emphasis added) 15. In the above decision, this Court held that as the procedure adopted in drawing the sample from the contraband substance produced had no sanction of law, the Certificate of Chemical Analysis obtained based on the sample so drawn has not evidentiary value. Therefore, Ext.P6 Chemical Analysis Report has no evidentiary value. 16. The upshot of the above discussion is that the prosecution has failed to connect the accused with the contraband allegedly seized. Therefore, the conviction and sentence passed against the accused cannot be sustained. The accused is acquitted of the offence alleged. She is set at liberty. Amount, if any, deposited by the accused as per the direction of this Court shall be disbursed to her. Crl.Appeal. 1626/2007 10 The appeal is allowed as above. Sd/- **K. BABU JUDGE** sb