Byju K.T. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **CRL.A NO. 895 OF 2007** **AGAINST THE JUDGMENT IN SC 561/2005 OF ADDITIONAL SESSIONS COURT** **(ADHOC-I), THALASSERY** ## **APPELLANT/ACCUSED:** BYJU K.T., AGED 33 YEARS, S/O. GOPALAN, COOLI BY PROFESSION, RESIDING AT SHYNA NIVAS,MUZHPPILANGAD, KANNUR DISTRICT. BY ADVS. K.K.CHANDRALEKHA SUDHEESH THAROL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, (SHO EDAKKAD POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SMT. REKHA. S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.895 of 2007 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.895 of 2007 --------------------------------------Dated this the 20[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 04.04.2007, passed by the Additional Sessions Court (Adhoc-1), Thalassery in S.C.No.561/2005, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offence punishable under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for a term of one month and pay a fine of Rs.1 Lakh. 3. The prosecution case is that on 24.07.2003 at 12.15 p.m, the accused was found in possession of 36 bottles, each containing 180ml of Indian made foreign liquor, authorised for sale in Pondicherry State only at Madam colony. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial First Class Crl.A No.895 of 2007 3 Magistrate Court, Thalassery. The case was committed to the Sessions Court, Thalassery 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. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P6. 6. 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 as aforesaid. 7. Heard Sri. K.K.Chandralekha, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Crl.A No.895 of 2007 4 ## Senior Public Prosecutor appearing for the respondent. 8. PW4, the additional Sub Inspector of Police, Edakkad Police station is the detecting officer. On 24.07.2003, while he was on patrol duty, on getting reliable information that the accused was engaged in the sale of Indian made foreign liquor near the water tank at Madam colony road, the police team led by PW4 proceeded to there. They found the accused in possession of 36 bottles, each containing 180ml of Indian made foreign liquor, authorised for sale only in the Pondicherry State. PW4, sealed one of the bottles to be used as sample. He prepared Ext.P1 seizure mahazar based on which Ext.P4 FIR was registered. PW3, the Sub Inspector of Police, Chakkarakkal conducted the investigation and submitted final report. 9. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory: - (a) The detecting officer has not given evidence as to the nature and description of the seal affixed on Crl.A No.895 of 2007 5 the bottle containing the sample. - (b) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (c) The contemporaneous records required to establish the arrest, such as arrest memo and arrest notice were not prepared by the detecting officer. - (d) There is no satisfactory explanation for the delay in the analysis of the sample. 10. I have gone through the oral evidence of the detecting officer. He has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Exhibit P1, seizure mahazar is also silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 11. In Bhaskaran K. v. State of Kerala and another (2020 KHC 6 Crl.A No.895 of 2007 5296) and in Krishnadas v. State of Kerala [2019 KHC 191] this Court held that the detecting officer who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. It was further held that the nature of the seal used shall be mentioned in the seizure mahazar. 12. The evidence regarding the nature and description of the seal affixed on the bottle containing the sample is highly required to enable the Court to satisfy the genuineness of the sample produced in the Court. In the instant case, there is absolutely no evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. 13. The defence also 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 7 Crl.A No.895 of 2007 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 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 arrest by the officer who arrested the accused. Therefore, the prosecution case built upon the foundation that the accused was arrested while possessing the contraband substance would fall to ground. The non- Crl.A No.895 of 2007 8 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 case set up by the prosecution falls to 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 highly doubtful. 16. Yet another aspect that requires consideration is that though the sample reached the laboratory on 20.08.2003, the same was subjected to analysis only on 21.07.2004. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in Crl.A No.895 of 2007 9 this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 17. The delay of more than 11 months in the analysis of the sample remained unexplained, the benefit of which must go to the accused. 18. 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. 19. It is 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 contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 Crl.A No.895 of 2007 10 ## (1) KHC 275]}. 20. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 21. 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 KAS