Appu, S/o Kittu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 23[RD] DAY OF JUNE 2022 / 2ND ASHADHA, 1944 ``` ``` CRL.A NO. 2581 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 622/2007 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC), THRISSUR ``` ``` CP 9/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, CHALAKUDY ``` ## **`APPELLANT/S:`** ``` APPU,S/O KITTU MINIMANDIRATHIL HOUSE, MATTATHUR VILLAGE, UPPAZHI DESOM, THRISSUR. ``` ``` BY ADV A.C.DEVY ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ## **`BY ADV PUBLIC PROSECUTOR`** ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2581 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** ======================== ## **Criminal Appeal No. 2581 of 2008** ======================== Dated this the 23[rd ] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 13.10.2008, passed by the learned Additional Sessions Court, (Adhoc), Fast Track Court-I, Thrissur, in Sessions Case No.622 of 2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.1 lakh. 2. The prosecution case is that, on 23.04.2005 at about 8.30 p.m., the appellant/accused was found in possession of a black can containing 2 liters of arrack at Nooluvally, Kizhakkumuri Junction, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report ``` CRL.A NO. 2581 OF 2008 ``` ``` 3 ``` was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Jurisidictional 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 him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the trial Court for the abovesaid offence. 4. The evidence on the side of the prosecution consists of the oral evidence of PWs 1 to 5, Exhibits P1 to P7 and MOs 1 to 3. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in ``` CRL.A NO. 2581 OF 2008 ``` ``` 4 ``` support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. A.C. Devy, the learned counsel appearing for the appellant and Smt. S. Rekha, 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: - (i) The arrest of the accused along with the contraband substance as alleged by the prosecution is doubtful. - (ii) The prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution has well established the ``` CRL.A NO. 2581 OF 2008 ``` ``` 5 ``` charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused is sustainable or not. 10. The case of the prosecution rests on the arrest of the accused on 23.04.2005 from the place of occurrence. PW4, the Detecting Officer gave evidence that the accused was arrested along with the contraband substance from the place of occurrence. No arrest memo was prepared and produced before the Court. 11. 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 ``` CRL.A NO. 2581 OF 2008 ``` ``` 6 ``` 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 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. 12. 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 prosecution has no case that the 'arrest memo' and 'arrest intimation' were prepared, but they could not be produced 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 ``` CRL.A NO. 2581 OF 2008 ``` ``` 7 ``` arrested while possessing the contraband substance. The non-compliance 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. 13. 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 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. 14. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution has not succeeded in proving that the ``` CRL.A NO. 2581 OF 2008 ``` ``` 8 ``` arrack allegedly seized from the place of occurrence was analysed in the Chemical Examiner’s Laboratory:- A) The delay in the production of properties before the Court has not been explained by the prosecution. B) No specimen seal was forwarded to the Chemical Examiner’s Laboratory to ascertain the genuineness of the sample subjected to analysis. C) Non-examination of various officials who handled the sample during its transit from the Court to the laboratory for chemical examination. 15. Ext.P5 property list shows that the properties, including the sample, were produced before the Court only on 25.04.2005. The prosecution has not offered any satisfactory explanation for the delay in the production of properties before the Court. 16. In **Ravi v. State of Kerala & another** [2011 (3) KLT 353], on the question of delay in the production ``` CRL.A NO. 2581 OF 2008 ``` ``` 9 ``` ## 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 Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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. ” (Emphasis supplied) 17. 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. 18. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out. 19. Ext.P6 forwarding note does not contain the specimen of the seal. There is nothing on record to show that the specimen seal was forwarded to the Chemical ``` CRL.A NO. 2581 OF 2008 ``` ``` 10 ``` Examiner’s Laboratory so as to enable the analyst to ascertain the genuineness of the sample. Ext.P5 property list shows that the sample was handed over to the property clerk of the Court on 25.04.2005. It was verified by the Junior Superintendent of the Court on 30.04.2005. Ext.P7 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 27.06.2005 of the Judicial First Class Magistrate, Chalakudy. The sample reached the laboratory on 28.06.2005. It was delivered by Police Constable No. 4958. Therefore, the sample remained in the custody of the property clerk and Junior Superintendent of the Court and the Police official who delivered the same in the laborarty. None of these officials were examined by the prosecution to rule out the possibility of sample being changed or tampered with. 20. 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 ``` CRL.A NO. 2581 OF 2008 ``` ``` 11 ``` it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 21. 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 it reaches the laboratory is required to be established by the prosecution. 22. In **Sasidharan v. State of Kerala [2007 (1) KLT 720],** this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on **State of Rajastan v. Daulat Ram [AIR 1980 SC 1314]** in **Sasidharan** (supra) this Court held that where sample changed several hands before reaching the Chemical ``` CRL.A NO. 2581 OF 2008 ``` ``` 12 ``` Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In **Sathi v. State of Kerala** **[2007 (1) ILR 718 (Ker.)],** this Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In **Sathi** (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under Section 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in **Sasidharan** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . 23. In **Rajamma v. State of Kerala [2014 (1) KLT 506],** this Court held that if the specimen of the ``` CRL.A NO. 2581 OF 2008 ``` ``` 13 ``` 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. 24. In the instant case, the prosecution failed to show that the arrack recovered from the possession of the accused was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 25. Another aspect to be considered is the delay in the analysis of the sample. Though the sample reached the laboratory on 28.06.2005, it was subjected to analysis only on 24.01.2007. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala (2019 KHC 191)** this court held thus; “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was Made on 26.06.2003. The report of analysis shows that the ``` CRL.A NO. 2581 OF 2008 ``` ``` 14 ``` analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 26. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 27. The prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 28. 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 ``` CRL.A NO. 2581 OF 2008 ``` ``` 15 ``` sustained. The appellant/accused is, therefore, acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. **Sd/K.BABU, JUDGE** LU