Bijesh, S/O Thodippulli Prabhakaran 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. 576 OF 2008** **UNDER SECTION 374(2) Cr.P.C. AGAINST THE JUDGMENT CONVICTION AND SENTENCE IN S.C.NO.375/06 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.I, THRISSUR DATED 28.2.2008.** ## **APPELLANT/ACCUSED:** **BIJESH, S/O. THODIPPULLI PRABHAKARAN, PUTHANOLI, VELLIKULANGARA, MUKUNDAPURAM. BY ADV P.MAYA ADV.P VIJAYA BHANU** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.PP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.576 of 2008** **2** ## **`JUDGMENT`** ## **`Dated this the 27[th] day of May, 2022`** ``` Aggrieved by the judgment dated 28.02.2008 passed by the Additional Sessions Judge (Adhoc), [Fast Track Court No.I] Thrissur in S.C.No.375/2006,the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1 Lakh. ``` ``` 2.The prosecution case is that on 14.06.2003 at 1.30 p.m., the accused was found in possession of 10 litres of illicit arrack on the Chathan Master Road lying on the western side of the Velan Railway Gate at Alathur in Nellayil Village. ``` ``` 3.After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the jurisdictional Magistrate. The case was committed to the ``` **CRL.A.No.576 of 2008** **3** ``` Sessions Court, Thrissur, 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 58 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 to 5 and proved Exts.P1 to P8 and MOs1 and MO2. ``` ``` 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 support thereof. The trial Court, after hearing the arguments addressed from both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1 lakh under ``` **CRL.A.No.576 of 2008** ## **4** ``` Section 58 of the Abkari Act. ``` ``` 6.Heard Sri.P.Vijaya Bhanu, the learned Senior Counsel appearing for the appellant and Smt.Rekha.S, 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:-` - `(a) The prosecution has not offered any satisfactory explanation for the delay in production of the articles, including the sample, before the Court.` - `(b) The prosecution failed to establish the` - `genuineness of the sample produced before the` - `Court and forwarded to the Chemical` ``` Examiner's laboratory. ``` - `(c) The prosecution also failed to establish the arrest of the accused as alleged.` `8. The alleged seizure was on 14.06.2003. The` `arrest and seizure were allegedly done by PW4, the Excise Inspector, Irinjalakkuda Excise range. The properties,` **CRL.A.No.576 of 2008** **5** ``` including the sample, reached the Court only on 17.06.2003, as is evident from Ext.P5, Property list. PW4 admitted in the examination in cross that the properties were produced before the Court only on 17.06.2003. He has not given any satisfactory explanation for the delay in production of the properties before the Court. ``` ``` 9.In Ravi v. State of Kerala [2011 (3) KHC 121] on the question of delay in production 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 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) ``` ``` 10. In Ravi's case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. ``` **CRL.A.No.576 of 2008** **6** ``` 11. There is no satisfactory explanation for the delay in production of properties before the Court. The unexplained delay in production of properties would lead to the conclusion that tampering with the samples could not be ruled out. ``` ``` 12. The prosecution case rests on the arrest of the accused on 14.06.2003. ``` ``` 13. The defence challenges the arrest of the accused as alleged. 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 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 ``` **CRL.A.No.576 of 2008** **7** ``` 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. ``` ``` 14. 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 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 ``` **CRL.A.No.576 of 2008** **8** ``` case set up by the prosecution falls to the ground. ``` ``` 15. 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. ``` `16. The learned counsel for the appellant further contended that the prosecution has not succeeded in ensuring the genuineness of the sample produced before the Court. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has also not given evidence as to the nature of the seal used. In` _**Bhaskaran K. v. State of Kerala and another (2020 KHC 5296)**_ , this Court held that the **CRL.A.No.576 of 2008** **9** nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen seal shall be produced in the Court, so as to enable the Court to satisfy the genuineness of the sample produced. 17. In the present case, there is nothing to show that the specimen of the seal used was forwarded to the Chemical Examiner's laboratory to verify the genuineness of the sample produced for analysis. No forwarding note/requisition for sending sample to the laboratory was produced and marked. _**`In Rajamma v. State of Kerala (MANU/KE/0056/2014 : 2014 (1) KLT 506),`**_ `this Court held that if the specimen of the 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.` ``` 18. In Ramachandran v. State of Kerala [2021 ``` ``` (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the ``` **CRL.A.No.576 of 2008** **10** ``` laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. ``` ``` 19. The resultant conclusion is that Ext.P7 certificate of chemical analysis has no evidentiary value. ``` ``` 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. 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. Resultantly, the accused is entitled to the benefit of doubt arises from the absence of link evidence and the other circumstances discussed. ``` **CRL.A.No.576 of 2008** **11** ``` 22. 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 58 of the Abkari Act. He is acquitted of the charge. He is set at liberty. ``` ``` The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/27/05/2022 ```