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_IN THE HIGH COURT OF KERALA AT ERNAKULAM_
_PRESENT_
_THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944_
## _CRL.A NO. 1109 OF 2007_
_AGAINST THE ORDER/JUDGMENT IN SC 1198/2001 OF ADDITIONAL_
_S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 192/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -_
_III,NEYYATTINKARA_
## _APPELLANT/ACCUSED:_
_BABU, S/O. BHASKARAN, MUKKONAMVILA VEEDU, MUTTAKKADU DESOM, THIRUVALLOM VILLAGE._
_BY ADV SRI.BLAZE K.JOSE_
## _RESPONDENT/COMPLAINANT:_
_STATE OF KERALA, REP.BY SUB INSPECTOR OF POLICE, KOVALAM., REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA._
## _R BY SRI. RANJIT GEORGE – SR.PUBLIC PROSECUTOR_
_THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_
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## **JUDGMENT**
The appellant is the accused in S.C.No.1198 of 2001 on the file of the Additional Sessions Court for trial court for Abkari cases, Neyyattinkara. The aforesaid case arises from Crime No.46 of 1999 of Kovalam Police station, registered against the appellant for the offence punishable under Section 58 of the Abkari Act.
2. The prosecution case is that, on 17.06.1999, at about 19.30 hours, upon receiving information regarding the sale of arrack in the residence of the appellant, they reached the spot at about 10 am on the same day. The accused was found holding a 10 litres black jerrycan with 9 litres of arrack in it and a glass tumbler. On seeing the police party, the appellant attempted to flee. But he was intercepted and questioned. The appellant was arrested from the spot and the articles were also seized. Based
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on the same, the aforesaid crime was registered, and an investigation was conducted. Later, the final report implicating the appellant as accused was submitted before the Judicial First Class Magistrate Court-III, Neyyattinkara, where it was taken into the file as C.P.No.192 of 2000. Upon completing the legal formalities, the matter was committed to the Sessions Court, Thiruvananthapuram. The same was later made over to the Additional Sessions Court for the trial of the Abkari Act cases, Neyyattinkara.
3. In support of the prosecution, PW1 to PW4 were examined, Ext.P1 to P8 were marked and MO’s 1 and 2 were identified. After the closure of prosecution evidence, the appellant was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the course of evidence were put to him, which he denied. No defence evidence was adduced. After evaluating the materials available on record, the learned Sessions Court found the appellant guilty of the offence punishable under Section 58 of the Abkari Act and accordingly, he
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was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- with a default sentence to undergo rigorous imprisonment for a period of six months.
4. This appeal is filed challenging the aforesaid order of conviction and sentence.
5. Heard Sri.Blaze K.Jose, learned counsel for the appellant and Sri.Renjit George, learned Public Prosecutor for the State. The learned counsel for the appellant contends that, the prosecution failed to establish the tamper proof condition of the article during the course of the investigation. It was pointed out that, even though the case of the prosecution is that the appellant was arrested from the spot along with articles, no arrest memo is prepared and seen marked. Apart from the above, it was further contended by the learned counsel for the appellant that Ext.P1 mahazar does not contain the impression of the specimen seal affixed on the article, nor there is any description of the seal affixed. Another crucial lacuna pointed out was that the sampling
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was done by the Thondi Clerk, while the same was produced before the court. By placing reliance upon these aspects, interference in the finding of conviction is sought.
6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. According to him, the materials already available on record are sufficient to hold the appellant guilty of the offence. In such circumstances, dismissal of the appeal was sought for.
7. The first contention put forward by the learned counsel for the appellant relates to the lack of an arrest memo. According to the prosecution, the appellant was found along with the contraband articles when PW3 and PW4 and other police officers, reached the residence of the appellant. At the relevant time, he was found holding a jerrycan which contained 9 litres of arrack and a glass tumbler was also found. Thus, the crux of the prosecution case is the arrest of the appellant along with contraband articles from the spot itself. An arrest memo is a document which would indicate the date, time, place and manner
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of arrest and the absence of the same is a crucial omission on the part of the prosecution. This is particularly because, the presence of the appellant at the relevant time at the relevant spot was one of the most crucial aspects which made out the case against the appellant.
8. The aforesaid omission gains more importance because of yet another fact. Another contemporaneous document prepared by the prosecution is Ext.P1 seizure mahazar. Even though it is stated therein that, immediately after the seizure of the articles seals were affixed on the same, Ext.P1 does not contain an impression of such seal or the inscription of the same. The independent witness, namely PW1, who was one of the attestors of Ext.P1 mahazar, had turned hostile to the prosecution. In such circumstances, the absence of impression of the seal and the description thereof in Ext.P1 mahazar is a serious lapse which creates a shadow of doubt on the prosecution case. This is because the absence of the impression of the seal or the description of such seal on the mahazer would result in failure
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on the part of the prosecution in establishing the tamper proof condition of the articles and the samples drawn from the same for chemical analysis. The position of law was made clear by this Court in **Moothedath Sivadasan and Another v. State of Kerala [2021 (1) KLT 744].**
9. Another illegality highlighted by the learned counsel for the appellant is the discrepancy in the sampling. Even as per the contents of Ext.P1 mahazar, no sampling was done at the time of the seizure of the same. PW3, the detecting officer, has explained that he did not do so because the same was to be produced before the Court. PW4 is the Thondi Clerk attached with the court. According to the said witness, he had drawn the sample from the contraband article allegedly seized from the possession of the appellant and forwarded the same for chemical analysis. He had indeed stated that the drawing of sample and forwarding of the same to chemical analyst was done on the basis of specific instruction in this regard from the learned Magistrate concerned. In **Baburaj v. State of Kerala [2021 (6) KHC 92],**
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this Court specifically considered the power of the learned Magistrate in directing the sampling to be done by the officers attached with the court. In the said decision, it was categorically held that the sampling could not have been done by the Thondi Clerk or even by the learned Magistrate. In such circumstances, even if the version of PW4 to the effect that the sampling was affected as per the orders of the learned Magistrate, the same cannot be accepted because they were not competent to do so. Sampling has to be done by the detecting officer or the investigating officer concerned, and the same cannot be relegated to any other person. In such circumstances, the discrepancies as discussed above in sampling the articles is yet another crucial aspect that goes against the prosecution case.
10. From the above materials, the only conclusion possible is that the prosecution failed to establish the tamper proof condition of the articles alleged to have been seized from the possession of the appellant. There are no materials to arrive at a specific conclusion that the sample subjected for chemical
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analysis is the same sample drawn from the articles seized from the possession of the appellant. In such circumstances, the irresistible conclusion possible is that the benefit of doubt that emerges from the above discrepancies is to be granted to the appellant herein. The judgment of the Sessions Court, holding the appellant guilty, is, therefore, warrants interference.
In the result, this appeal is allowed. The judgment dated 13.04.2007 passed by the Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara in S.C.No.1198 of 2001, is hereby set aside. The appellant/accused is found not guilty, and he is acquitted of the charges. His bail bond shall stand cancelled.
Sd/-
## **ZIYAD RAHMAN A.A.**
## **JUDGE**
DG/24.3.22
