Arjunan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** **CRL.A NO. 2187 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 39/2006 OF IIIRD ADDITIONAL** **SESSIONS COURT (ADHOC-I), THODUPUZHA** **CP 66/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA** ## **APPELLANT/ACCUSED:** ARJUNAN, S/O.PERIYATHEVAR, KANDATHIL HOUSE, NO.272, CHEENTHALAR 2ND DIVISION, LONETREE BHAGOM, UPPUTHARA. BY ADVS. SRI.TITUS MANI VETTOM SRI.S.SURAJ PALATHANATHU ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, UPPUTHARA. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2187 of 2007 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.2187 of 2007 --------------------------------------Dated this the 28[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 15.10.2007, passed by the III[rd] Additional Sessions Court (Adhoc-I), Thodupuzha in S.C.No.39/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three months and pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. No separate sentence was awarded for the offence under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 24.06.2003 at 5.50 p.m, the accused was found in possession of 6 litres of arrack and a glass tumbler for sale at the courtyard of the shed for storing tea leaves belonging to Peermade Tea Company at Puthukkadu Junction in Upputhara Village, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Crl.A No.2187 of 2007 3 Sections 55(a) and 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, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P8 and MOs 1 to 3. 5. After the closure of the prosecution evidence, 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 support thereof. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard Sri. Titus Mani Vettom, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Crl.A No.2187 of 2007 4 ## Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: - (i) The arrest of the accused as pleaded by the prosecution is doubtful. - (ii) The prosecution has not succeeded in establishing that the contraband substance seized from the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The foundation of the prosecution case is that the accused was arrested along with the contraband substance on 24.06.2003. The learned counsel for the appellant disputed the arrest of the accused relying on the presence of the crime number in the arrest memo. I have perused the arrest memo and inspection memo prepared by the officer who detected the offence on 24.06.2003. The arrest memo as well as the inspection memo contain the number of crime (84/2003) 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 Crl.A No.2187 of 2007 5 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. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in the arrest memo and inspection memo, a doubt arises as to the manner in which the seizure and arrest were effected. 10. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution has not established that the contraband seized from the scene of occurrence was actually subjected to analysis in the Chemical Examiner's laboratory: (a) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have Crl.A No.2187 of 2007 6 been affixed on the bottle containing the sample. - (b) Though as per Ext.P7 forwarding note the sample was forwarded to the laboratory on 24.06.2003, it reached the laboratory only on 24.07.2003. - (c) The delay in the production of the properties, including the sample, before the Court has not been satisfactorily explained. 11. The seizure and arrest were effected on 24.06.2003. The properties, including the sample, were produced before the Court only on 26.06.2003, which is evident from Exhibit P6, the list of properties. There is no satisfactory explanation for the delay in the production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties before the Court, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. 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 Crl.A No.2187 of 2007 7 ## production of the property. ” (Emphasis supplied) In Ravis' 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. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out. 13. Exhibit P1 is the seizure mahazar prepared to evidence seizure and drawing of sample. According to the prosecution, the detecting officer had drawn sample from the contraband substance seized at the place of occurrence. Exhibit P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court at the time of production of the properties. 14. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting Crl.A No.2187 of 2007 8 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. The learned counsel for the appellant has taken me to Ext.P7 which would show that the sample was forwarded to the laboratory on 24.06.2003. Exhibit P8 Certificate of Chemical Analysis would show that the bottle containing the sample reached the laboratory only on 24.07.2003. There is no satisfactory explanation for the custody of the sample during the interregnum from 24.06.2003 to 24.07.2003. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 16. In the absence of any satisfactory explanation for the custody of the sample during the interregnum from 24.06.2003 to Crl.A No.2187 of 2007 9 24.07.2003, it is to be concluded that the prosecution could not succeed in establishing the tamper-proof despatch of the sample to the laboratory. 17. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 24.07.2003, it was analysed only on 29.10.2004. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “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 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.” 18. In the instant case, the delay in the analysis of the sample has not been explained by the prosecution. 19. Since, the prosecution has not succeeded in establishing that the contraband substance seized was actually subjected to analysis in the Chemical Examiner's Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.2187 of 2007 10 20. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex 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. 21. 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]}. 22. In the instant case, the prosecution has miserably failed 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. 23. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the Crl.A No.2187 of 2007 11 matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offences alleged. He is set at liberty. 24. Any amount deposited by the appellant before the Court below as per the directions of this Court, shall be disbursed to him forthwith. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS