Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944** **CRL.A NO. 2331 OF 2008** **AGAINST THE JUDGMENT IN SC 317/2006 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE** ## **APPELLANT/1ST ACCUSED:** BABU, S/O.KUTTIMON, AGED 42 YEARS, ARIYANTE PARAMBIL, PANTHALAYANI AMSOM, KOYILANDY TALUK. BY ADV SRI.SANTHARAM.P ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BYPUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA. S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2331 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.2331 of 2008 --------------------------------------Dated this the 27[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 05.09.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode in S.C.No.317/2006, 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 term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 27.05.2004, at 7.00 p.m, the appellant/accused was found in possession of 500ml of illicit arrack in a bottle near Nelliyadikkadavu palam in Viyyur amsom. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Court. 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 3 Crl.A No.2331 of 2008 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 aforesaid offence. 4. The prosecution examined PWs 1 and 2 and proved Exts.P1 to P6 and MO1 series. 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. Santharam. P, the learned counsel appearing for the appellant/accused 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: Crl.A No.2331 of 2008 4 - (a) The genesis of the prosecution is doubtful as the alleged arrest has not been proved. - (b) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. According to the prosecution, the accused was arrested on 27.05.2004 from the scene of occurrence. The defence disputes the arrest of the accused, relying on the ground that crime number is seen entered in Ext.P2 arrest memo. Exhibit P2 contains Crime No.310/2004 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 not be the crime number in the arrest memo. This creates doubt about the genesis of the Crl.A No.2331 of 2008 5 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 Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 10. The learned counsel for the appellant/accused contended that the prosecution failed to establish the genuineness of the sample produced before the Court. The learned counsel further contended that Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. 11. I have gone through Ext.P1, which 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 and description of the seal used. 12. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle Crl.A No.2331 of 2008 6 containing the sample and the nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the Court {Vide: Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), Achuthan v. State of Kerala [2016 (1) KLD 391], Krishnadas v. State of Kerala (2019 KHC 191)}. 13. There is absolutely no evidence to convince the Court that the prosecution produced the specimen impression of the seal before the Court when the contraband substance was produced before the Court. 14. The sample remained in the custody of the property clerk of the Court, the Police officials who received the same from the Court and delivered to the Chemical Examiner's laboratory. These witnesses were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The inevitable consequence is that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. This view is Crl.A No.2331 of 2008 7 fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 15. In the absence of any evidence to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory, Ext.P5, the Certificate of Chemical Analysis has no evidentiary value. 16. 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. 17. It is well 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 bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so when the sample might have changed several hands before it reached the hands of the Chemical Examiner. {Vide: State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314], Valsala v. State of Crl.A No.2331 of 2008 8 Kerala (1993 KHC 798), Sathi v. State of Kerala [2007 (1) KHC 778]. 18. 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 appellant/accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 19. 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. The appellant/accused is, therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS