Antony Sajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945** **CRL.A NO. 147 OF 2021** **AGAINST THE ORDER/JUDGMENTSC 81/2016 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT/ACCUSED:** ANTONY SAJAN, AGED 41 YEARS S/O. VARU, PANDIYATH PARAMBIL, PALACHUVADU, KUNDANNOOR KARA, VAZHAKKALA VILLAGE BY ADVS. MATHAI VARKEY MUTHIRENTHY SMT.ANITHA MATHAI MUTHIRENTHY ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, THRIKKAKARA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** PP M.C.ASHI **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **26.06.2023, THE COURT ON 19/7/2023 DELIVERED THE FOLLOWING:** Crl.A.147 of 2021 2 ## **V.G.ARUN J.** ------------------------------------Crl.Appeal.No.147 of 2021 **---------------------------------** Dated this the 19th day of July 2023 ## **JUDGMENT** The appellant stands convicted for the offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short). The prosecution allegations, which led to the appellant’s conviction, are as under; In 30/9/2015, while PW1 the Additional Sub Inspector of Thrikkakara Police Station was on patrol duty, the appellant was found standing in front of Creative Plumbing and Electronic Contractors, an establishment functioning at Palachuvadu in Vazhakkala. The appellant’s attempt to briskly leave the spot on seeing the police party led to suspicion. The appellant was therefore stopped and the bag in his hand was searched in the presence of witnesses. On search, the bag was found to contain 4 ampules of Lupigesic Buprenorphine injection IP, 18 ampules of LP gesic Buprenorphine Injection IP and 6 ampules of Phenergan Pomethazine Hydro Chloride Injection IP, total 28 ampules. Thereupon, the materials were seized after taking samples and the appellant was arrested. Crl.A.147 of 2021 3 2. To prove the prosecution case, PWs1 to 6 were examined and Exts.P1 to P16 as well as MOs 1 to 15 marked. The appellant denied the incriminating circumstances put to him during Section 313 questioning and filed an additional statement under Section 313(5) Cr.P.C. In his statement, the appellant claimed that, on 30.09.2015, while he was resting in his house after finishing that day's work, the police forcibly took him to Palachuvadu junction in their jeep and on reaching the junction, placed a bag in front of the jeep. When the onlookers enquired as to what was happening, the police stated that the bag contained drugs seized from the appellant's possession and asked two persons to stand as witnesses for recovery of the contraband. None of the onlookers volunteered, as they suspected foul play on the part of the police. Hence, the police stopped two persons passing by on a motorcycle and made them sign as witnesses without revealing as to what had transpired. Except for the statement under Section 313(5) Cr. P.C., no evidence, either oral or documentary, was tendered on the defence side. The trial court, on appreciation of evidence and the legal contentions, found the appellant guilty of the offence under Section 22(b) of the Act and thereupon convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-. Crl.A.147 of 2021 4 3. Heard Adv.Anitha Mathai Muthirenthi for the appellant and Public Prosecutor M.C.Ashi for the State. 4. Learned Counsel for the appellant assailed the findings in the impugned judgment on the following grounds; - (a) Unexplained delay in registering the FIR. (b ) Delay in sending the FIR to court. (c ) Delay in producing the appellant before the court after his arrest. - (d) Delay in producing the seized contraband in court. - (e) Failure to affix specimen seal in the seizure mahazar - (f) Non-compliance with Section 57 of the Act. In elaboration of the first ground, it is pointed out that, as per Ext.P1 seizure mahazar and Ext P7 arrest memo, the seizure was affected by 4 pm and the arrest was recorded by about 4.20 pm on 30/9/2015. Surprisingly, the FIR was registered at 10.40 AM on 1/10/2015, 18 hours after the seizure and arrest. No explanation is offered for the inordinate delay in registering the FIR. Hence, the prosecution story is rendered suspicious from the very inception. Concerning the second ground the submission is that, while in the FIR the time and date are noted as 6.15 PM on 1/10/2015, the official seal of the Magistrate's court bears the date, 3/10/2015. Crl.A.147 of 2021 5 Relying on the decision in **Biju v. State of Kerala (2012(4) KHC 370),** it is contended that the unexplained delay in sending the FIR to the court is sufficient reason for disbelieving the prosecution case. To buttress the argument regarding the delay in producing the appellant in court, it is pointed out that, despite the time of arrest being recorded as 4.20 pm on 30/9/2015, the appellant was produced before the magistrate only at 6.15 p.m on 1/10/2015, even though the Court of the Judicial First Class Magistrate, Kakkanad is at a distance of only 3.5 km from the Police station, Thus, the requirement of producing the accused within 24 hours of arrest mandated by Article 22(3) of the Constitution of India and Section 57 of Cr. P.C. was violated. This, according to the Counsel, lends credence to the defence version that the appellant was arrested from his house and falsely implicated in the crime. In support of the challenge based on the delay in producing the sample and seized articles in court, it is submitted that the sample, along with contraband seized on 30.09.2015, was produced in court only on 06.10.2015. The detecting officer (PW1) admitted that the articles were produced in court only on 6/10/2015 as he was busy with other work. As against this, in Ext.P15 remand report submitted on 1/10/2015, the Circle Inspector of Police (PW6) Crl.A.147 of 2021 6 stated that the seized articles had already been forwarded to the court. The delay in producing the sample and the inconsistent version as to its custody from 01.10.2015 to 06.10.2015 are highlighted to contend that it is doubtful whether the sample collected on 30.09.2015 itself was produced in court. Attention is also drawn to Standing Order No. 1/89, detailing with the procedure for storage and disposal of notified drugs. Reference is made to Section 3 of the notification, which stipulates that all drugs should be stored in safes and vaults provided with a double locking system and the seizing officer, who is having overall charge and supervision, should obtain an acknowledgment and hand over the drugs to the investigating officer. Further, a register containing entries with respect to receipt of the seized articles should also be maintained. The decision in **Faijas v. State of Kerala (2020 KHC 5259)** is pressed into service in support of the argument that the delay in the contraband reaching the court would raise a suspicion as to whether it was the seized articles themselves that were sent to the chemical examiner. The other ground of challenge is based on the failure of the detecting officer to affix the impression of the specimen seal on the seizure mahazar. Here the contention is that without the seal being affixed, it was impossible for the court to verify and ensure that the Crl.A.147 of 2021 7 sample produced in court was the sample taken from the seized contraband itself. To buttress the contention, reliance is placed on the decision of this Court in **Faijas's case.** The challenge against Ext.P13, the Section 57 report, is on the premise that it does not contain the details of sampling etc, without which it cannot be treated as a proper report. This argument is advanced on the strength of the decision in **Shameer v. State of Kerala** [ **2019 (3) KHC 577]** . 5. Finally, it is contended that the inadequacies in the investigation and the inconsistencies in the oral and documentary evidence tendered by the prosecution witnesses are sufficient to acquit the accused by giving him the benefit of the doubt. 6. Learned Public Prosecutor retorted to the contention by pointing out that many of the grounds are urged for the first time at the appellate stage. It is submitted that the entry pertaining to the crime is noted in the General Diary at 17.00 hours on 30/9/2015. The time and date of registration of the FIR was recorded as 10.40 am on 1/10/2015 because of the delay in entering the FIR in the computer system at the police station. The contention regarding the delay in producing the FIR in court is countered by pointing out that, in the FIR, the time and date have Crl.A.147 of 2021 8 been noted as 6.45 p.m. on 1/10/2015 by the Magistrate. As regards the allegation that the appellant was produced in court after 24 hours of arrest, the contention is that the appellant was actually produced within 24 hours, but the formalities could be completed only by 6.45 p.m on 1/10/2015. As such, there is no violation either of Article 22 of the Constitution or Section 57 of the Code. According to the Public Prosecutor, the contention regarding delay in producing the contraband in court cannot be countenanced, since no prejudice was caused to the appellant. Moreover, PW1 had categorically stated that the articles were in his safe custody till production in court on 6/10/2015. The Magistrate having compared the packets with the sample seal provided and found the seals to be intact, the omission to affix seal on the scene mahazar is of no consequence. As the search and seizure was conducted in the presence of independent witnesses, the defence version that the petitioner was taken into custody from his house is also liable to be rejected. 7. Indisputably, the FIR was registered 18 hours after the search, seizure and arrest. In this regard, it is pertinent to note that the time and date are entered as 10.40 am and 1/10/2015 in the FIR and the date of occurrence and time are recorded as 30/9/2015 and 16.00 hours. In contemporaneous documents like Crl.A.147 of 2021 9 Ext.P7 arrest memo and Ext.P8 inspection memo, the time and date are noted as 4.20 p.m. and 30/9/2015. In such circumstances, the explanation of the prosecution that the delay in registering the FR was due to the time lag between arrest and entering of requisite details in the computer system cannot be discarded as such. As held by the Supreme Court in **State of H.P. v. Gian Chand** ( **2001 (6) SCC 71),** delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground. Of course, delay assumes relevance when taken along with other factors. 8. From the endorsement made by the magistrate, it is evident that the FIR had reached the court at 6.15 pm on 1/10/2015. The same date and time are shown in Ext.P15 remand report also. No doubt, failure to explain the delay would require the court to minutely examine the prosecution's version. For the purpose of such examination, the court will have to take into account the creditworthiness of the ocular evidence adduced by the prosecution. If the ocular evidence is worthy of acceptance, the element of delay by itself would not weaken the prosecution case. While considering the contention regarding the delay in the seized articles reaching the court, the fact that the articles seized on 30/9/2015 had reached the court only on 6/10/2015 assumes Crl.A.147 of 2021 10 relevance. No doubt, in his evidence, PW1 stated that the seized articles were in his custody during the interregnum. Pertinently, in the remand report submitted on 1/10/2015, the investigating officer stated that the seized articles had already been forwarded to the court under Form 151(A). These contradictory versions of the detecting and investigating officers, coupled with the failure to give specific details regarding how the seized articles were stored, cast a shadow of doubt on the prosecution case. In this context, it will be beneficial to read the following opinion expressed by the Supreme Court in **State of Uttar Pradesh v. Hansraj** ( **2018)18 SCC 355;** **“7.** The High Court has also pointed out that it was incumbent on the part of the prosecution to lead the evidence to show as to how and in what conditions the articles were preserved at the police station and how safely they were taken from there to the respective chemical examiners by its carriers. The learned counsel for the State has submitted that the investigating officer in this particular case has passed away and, therefore, the prosecution was handicapped in adducing the necessary evidence. Notwithstanding the death of the investigating officer, nothing prevented the prosecution from examining any other witness who was associated with the investigation and adducing necessary evidence to prove as to how and in what conditions the articles were preserved at the Crl.A.147 of 2021 11 police station/police station godown.” . 9. This Court also dealt with the issue in **Faijas's** case, the relevant portion of which is extracted hereunder; “39. The alleged occurrence was on 15/11/2011. Ext.P8 property list shows that the seized substances were produced in the court only on 19/11/2011. The prosecution has not explained the reason for the delay in producing the seized substances, including the samples, before the court. It is not explained what prevented the detecting officer or the investigating officer to produce the seized articles in the court immediately after the seizure. In view of the unexplained delay in producing the seized articles before the court, tampering with such articles at the police station cannot be ruled out.” 10. The shadow of doubt gets ominous due to the failure of the detecting officer to affix the impression of the specimen seal in the scene mahazar. In **Faijas's** case, a learned Judge of this Court has exposited about the purpose of affixing the impression of the specimen seal in the seizure mahazar and the consequence of nonproduction of the sample seal in court. Paragraphs 44, 45 and 46 of the judgment being of relevance is extracted hereunder; “44. The purpose of putting the specimen seal Crl.A.147 of 2021 12 impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reached the court without any tampering. A specific space is provided in the forwarding note for affixing the specimen of the seal affixed on the sample. The specimen of the seal is provided in the forwarding note to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. The recital in the chemical analysis report that the seal on the sample packet was intact and it tallied with sample seal provided alone is not sufficient to come to the conclusion that the very same sample taken by the detecting officer at the spot of the occurrence had reached the laboratory for analysis. It is usual that seal of the court would be affixed while sending the sample for analysis to the chemical examiner. Therefore, the sample seal mentioned in the chemical analysis certificate can also be the seal of the court. A comparison of the seal affixed on the sample packet with the specimen seal of the court will not give any assurance that the sample taken from the possession of the accused had reached the chemical examiner for analysis. Such an assurance would be possible only when the specimen of the seal affixed on the sample packet is provided to the chemical examiner for comparison. Such link evidence is missing in this Crl.A.147 of 2021 13 case. 45. To put it in a nutshell, the unexplained delay in producing the seized substances before the court and absence of evidence as to how and in what condition the seized substances, including the samples, were kept in the police station till the date of their production in the court alongwith the circumstance that there is absence of evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, create doubt as to whether seizure of the substances was effected from the accused in the manner alleged by the prosecution. The benefit of that doubt shall be given to the accused. 46. In the light of the discussion above, the appellant is entitled to be acquitted solely on the ground mentioned in the preceding paragraph.” 11. In this context, it is also essential to note that the two independent witnesses are completely silent about the sampling and seizure of the recovered contraband. How the seizure was affected and the samples collected and sealed is not stated in the Section 57 report also. Therefore, except the testimony of PW’s 1 and 4, there is no other evidence on this aspect. That evidence is thoroughly insufficient when pitted against the delay in the Crl.A.147 of 2021 14 production of samples, failure to let in evidence as to how the samples were stored and absence of the impression of the specimen seal in the scene mahazar. In this context, it is also essential to note the mandate of Section 55 which requires the officer-in-charge of the police station to take charge of and keep in safe custody all articles seized under the Act within the local area of that police station. Pertinently, PW6, the Circle Inspector of Thrikkakara Police Station has no case that the articles were entrusted to him for safe custody. The above crucial omissions, taken along with the delay at all stages of the investigation, like registration of FlR, sending of FIR to court and production of accused in court leaves this court with no alternative but to find the appellant to be entitled to the benefit of doubt. In the result, the appeal is allowed, the judgment of the trial court set aside and the appellant acquitted. The bail bonds executed by the appellant and sureties will stand cancelled. Sd/- ## **V.G.ARUN** ## **JUDGE** dpk