Anil Kumar and Vijayan v State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944** **CRL.A NO. 2991 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1407/2001 OF ADDITIONAL SESSIONS** ## **COURT (ADHOC)-IV, TRIVANDRUM** ## **APPELLANTS/ACCUSED 2 & 3:** 1 ANIL KUMAR, S/O SIVANANDA PANICKER, MUTHUVANAKKODU, KARIKKATTU PUTHEN VEEDU, NEAR R.C.CHURCH, KANNUMAMMOODU, PALUKAL VILLAGE. 2 VIJAYAN, S/O.CHELLAPPAN PILLAI, CHAMAVILA PUTHEN VEEDU,KONNANIKKONAM, KUNNATHUKAL VILLAGE,, NEYYATTINKARA. BY ADV G.SUDHEER ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV SR PP SMT. REKHA S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2991 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2991 of 2008 --------------------------------------Dated this the 30[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 17.12.2008, passed by the Additional Sessions Court, Fast Track (Adhoc) No.IV, Thiruvananthapuram in S.C.No.1407/2001, accused Nos.2 and 3 have preferred this appeal. The appellants were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 04.01.2000 the appellants and other accused were found in possession of 15 litres of illicit arrack in two plastic cans at Karakonam. 3. After completing the investigation, final report was submitted against the appellants and the other accused for the offences punishable under Sections 55(a) and 55(i) 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. Crl.A No.2991 of 2008 3 On the appearance of the accused, charge was framed against them for the offence punishable under Section 8(2) 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 5 and proved Exts.P1 to P8 and MOs 1 to 3. 5. After the closure of the prosecution evidence, 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 adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants/accused Nos.2 and 3 for the aforesaid offence. Accused No.1 was acquitted. 6. Heard Sri. G.Sudheer, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: Crl.A No.2991 of 2008 4 - (i) The arrest of the accused as alleged by the prosecution is doubtful. - (ii) The prosecution failed to prove the genuineness of the contraband substance produced before the Court and forwarded to the Analyst. 8. The learned counsel for the appellants contended that the arrest of the accused is doubtful in view of the presence of crime number in Ext.P3(a) arrest memo. The prosecution case is built upon the foundation that the accused were arrested from the scene of occurrence on 04.01.2000 along with the contraband substance. Exhibits P3 and P3(a) arrest memos contain the number of the crime registered against the accused. While dealing with a similar fact situation, this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus: “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 Crl.A No.2991 of 2008 5 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. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Exts.P3 and P3(a) arrest memos, a doubt arises as to the manner in which the seizure and arrest were effected. 10. PW4, the then Sub Inspector of Police, Vellarada Police Station is the detecting officer. PW4 allegedly arrested the accused and seized the illicit arrack from the place of occurrence on 04.01.2000. PW4 had not drawn sample from the arrack seized from the place of occurrence. PW4 produced two cans containing the illicit arrack before the jurisdictional Magistrate. Though PW4 stated in Ext.P2 siezure mahazar that he had sealed the cans recovered from the possession of the accused, he did not mention the nature and description of the seal used. No specimen seal was produced before the Court. Therefore, the prosecution failed to show the genuineness of the contraband substance produced before the Court due to the fact that the officer who received the Crl.A No.2991 of 2008 6 same at the Court had no opportunity to verify the seal stated to have been affixed on it. 11. PW5, the property clerk had drawn sample from bulk quantity of the contraband produced before the Court in two bottles and forwarded the same to the Analyst for examination. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or Excise official concerned. Drawing sample by an officer of the Court is not a procedure established by law. This question was considered by this Court in Baburaj v. State of Kerala [2021 (6) KHC 92]. The relevant portion of the judgment is extracted below: “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) Crl.A No.2991 of 2008 7 KLT 590], this Court had an occasion to 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.” 12. This Court in Baburaj's case (supra) further held that as the procedure adopted in drawing sample from the contraband substance has no sanction of law, the report of the Chemical Examiner has no evidentiary value. 13. In the present case, the prosecution also failed to show that the specimen of the seal was forwarded to the Chemical Examiner's laboratory. PW5, the officer who had drawn the sample, has not given evidence that the specimen of the seal was forwarded to the Chemical Examiner's laboratory. The forwarding note was also not produced and marked. 14. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same Crl.A No.2991 of 2008 8 sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 15. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 16. In Rajamma v. State of Kerala [2014 (1) KLT 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. 17. In the absence of evidence to show that the arrack allegedly seized from the place of occurrence was subjected to analysis in the laboratory, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 18. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Crl.A No.2991 of 2008 9 Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 19. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 20. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellants/accused Nos.2 and 3 are acquitted of the charge. They Crl.A No.2991 of 2008 10 are set at liberty. 22. Any amount deposited by the appellants before the Court below as per the directions of this Court shall be disbursed to them forthwith. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS