Binu Sreenilayam v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 1880 OF 2008`** ``` AGAINST THE JUDGMENT IN SC 158/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/S:`** ``` BINU SREENILAYAM, KOLLAVAYALKUNNU, NENMENL PO.,, KOLIYADI. ``` ``` BY ADV SRI.MATHEW KURIAKOSE ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA OF AMBALAVAYAL POLICE STATION), REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SR.GOVERNMENT PLEADER SMT. REKHA ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1880 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 14.08.2008, passed by the Additional Sessions Court (Adhoc – II), Kalpetta in Sessions Case No.158 of 2006, the accused 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. One Lakh. 2. The prosecution case is that on 31.08.2005 at 8.30 pm, the accused was found in possession of 10 litres of arrack at Koliyadi 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 ``` CRL.A NO. 1880 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 charge 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 to 7 and proved Exts P1 to P7 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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. Exts. D1 and D2 were produced and marked on the side of the ``` CRL.A NO. 1880 OF 2008 ``` ..4.. defence. 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. Mathew Kuriakose M., 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 challenges the judgment of conviction and sentence on the following grounds:- - (1) The arrest of the accused as pleaded by the prosecution is doubtful. - (2) The prosecution failed to show that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. ``` CRL.A NO. 1880 OF 2008 ``` ..5.. 8. The alleged seizure was effected on 31.08.2005 by the Sub Inspector of Police, Ambalavayal Police Station. The prosecution case is based on the allegation that on 31.08.2005 the accused was found in possession of the contraband substance at the scene of occurrence. He was allegedly arrested along with the contraband substance. The learned counsel for the appellant relying on the presence of the Crime Number in Ext.P4 arrest memo contended that the genuineness of the arrest itself is doubtful. 9. Ext.P4 contains the crime registered against the appellant (Crime No.144 of 2004). 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. ``` CRL.A NO. 1880 OF 2008 ``` ..6.. 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(3) KHC 715)].” 10. The prosecution has not offered any explanation for the presence of crime number in the Ext.P4 arrest memo. In the absence of any satisfactory explanation offered by the prosecution with regard to the crime number in Ext.P4 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. Ext.P3, the Certificate of Chemical Analysis, would show that the two bottles containing the sample were forwarded to the laboratory ``` CRL.A NO. 1880 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** as per letter dated 03.10.2005 of the Judicial First Class Magistrate-I, Sulthan Batheri. The bottles reached the laboratory on 10.10.2005 as is evident from Ext.P3. The prosecution has not offered any explanation as to the custody of the sample during the interregnum from 03.10.2005 to 10.10.2005. In the absence of any contra evidence regarding the date on which the sample was forwarded to the laboratory the necessary inference is that the Police official who delivered the sample to the laboratory received the same on 03.10.2005 but the bottles containing the sample were delivered in the laboratory only on 10.10.2005. 12. 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 ``` CRL.A NO. 1880 OF 2008 ``` ..8.. 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.” 13. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 14. The Property Clerk who sent the sample to the laboratory and the Police official who delivered the same in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. In the absence of any evidence regarding the custody of the sample during the interregnum from 03.10.2005 to 10.10.2005, it can be concluded that the prosecution failed to establish the tamper-proof despatch ``` CRL.A NO. 1880 OF 2008 ``` ..9.. of the sample to the laboratory. 15. In the absence of any convincing evidence as to the genuineness of the sample forwarded to the laboratory, Ext P3, Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 16. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; ``` CRL.A NO. 1880 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj