BHOOMIPALAKAN @ BHOOMY S/O NAGARAJ v STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022 / 30TH AGRAHAYANA,** ## **1944** ## **CRL.A NO. 1881 OF 2008** **SC 364/2006 OF ADDITIONAL SESSIONS COURT (NDPS ACT CASES),** ## **THODUPUZHA** **CP 26/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM APPELLANT/2ND ACCUSED** BHOOMIPALAKAN @ BHOOMY S/O.NAGARAJ, BHOOMIYIL HOUSE, KUNKERIPETTIKARA, CHAKKUPALLAM VILLAGE, IDUKKI DIST. BY ADVS. SRI.THOMAS J.ANAKKALLUNKAL ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SPL.PUBLIC PROSECUTOR SRI.RAJESH A. REKHA, GP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.1881/2008 2 K. BABU, J. -----------------Crl.Appeal No.1881 of 2008 ----------------------Dated : 21[st] December, 2022 ## JUDGMENT Aggrieved by the judgment dated 31.7.2008, passed by the Additional Sessions Court, Thodupuzha, in Sessions Case No.364 of 2006, the accused No.2 has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 07.03.2003 at 7.00 pm the accused was found in possession of 10 litres of illicit arrack at Vandenmedu 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 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. Crl.A.1881/2008 3 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 P11 and MOs 1 to 9. 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 to adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.P.Vijayabhanu, the learned Senior counsel appearing for the appellant/accused and Smt.Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is Crl.A.1881/2008 4 challenged on the following grounds : (a) The arrest of the accused along with the contraband liquor in the place of occurrence as alleged by the prosecution is doubtful. (b) The prosecution failed to show that the contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant/accused No.2 contended that the presence of crime number in Ext.P6 arrest memo makes the arrest doubtful as alleged by the prosecution. The learned counsel contended that if arrest had been effected as alleged by the prosecution, the detecting officer could not have entered the crime number in Ext.P6. On perusal of Ext.P6 it is found that the number of crime registered against the accused has been entered in Ext.P6 arrest memo. Prosecution has not offered any explanation for the presence of crime number in the arrest memo. 9. While dealing with a similar fact situation in **Santhosh v. State of Kerala [2021 (5) KHC 214]** , this Court held thus: “14. The presence of crime number in the arrest Crl.A.1881/2008 5 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 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)].** ” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of crime number in Ext.P6 arrest memo, a doubt arises in the manner in which seizure and arrest were effected. 11. The learned counsel for the appellant further contended that prosecution has not given any satisfactory explanation for the delay in the production of properties, including sample. Though the alleged seizure was effected on 7.3.2005, the properties including sample were produced Crl.A.1881/2008 6 before the Court only on 9.3.2005 as evident from Ext.P9 property list. The accused was produced before Court on 8.3.2005. To a specific question in the cross-examination as to the delay in the production of properties including the sample before the Court, the detecting Officer had no satisfactory answer. 12. In **Ravi v. State of Kerala** [2011 (3) KHC 121], on the question of delay in the production of properties, 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 production of the property.”_ _(Emphasis supplied)_ 13. **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 Crl.A.1881/2008 7 the property. 14. 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 samples could not be ruled out. 15. Ext.P1 is the seizure mahazar prepared at the time of seizure and arrest. The detecting Officer had not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P1 seizure mahazar. The detecting Officer had not given any evidence as to the nature of the seal used. 16. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting 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. 17. In the instant case, the prosecution failed to establish that the contraband seized eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P11 Certificate of Chemical analysis has no evidentiary value. 8 ## Crl.A.1881/2008 18. In the result, the prosecution failed to establish the link connecting the accused with the contraband seized. Therefore, the judgment of conviction and sentence cannot be sustained. The appellant/accused is acquitted of the offence alleged. He is set at liberty. Appeal is allowed. Sd/- K. BABU, Judge Mrcs