Chamithevar S/O Chinnathevar and Kala W/O Chamithevar, Vandenenmedu Panchayat, Kochar Kara, Anakkara Village v. State of Kerala

Crl.A No.2141 of 2007 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 CRL.A NO. 2141 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 5/2006 OF THE ADDL.SESSIONS COURT, ``` ``` THODUPUZHA ``` ## **`APPELLANTS/ACCUSED:`** ``` 1CHAMITHEVAR S/O.CHINNATHEVAR, VANDENMEDU PANCHAYAT, KOCHARA KARA, ANAKKARA VILLAGE 2KALA, W/O.CHAMITHEVAR, VANDANMEDU PANCHAYAT, KOCHARA KARA, ANAKKARA VILLAGE. BY ADV SRI.SOJAN MICHEAL ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` BY SRI.G.SUDHEER-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A No.2141 of 2007 2 K.BABU, J ------------------------------------------------- Crl.A No.2141 of 2007 -------------------------------------------------Dated this the 22[nd] day of February, 2024 J U D G M E N T Aggrieved by the judgment dated 8.10.2007, passed by the Additional Sessions Court, Thodupuzha in S.C.No.5/2006, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offence punishable under Section 55(g) of the Abkari Act. 3. The prosecution case is that on 4.3.2004 at about 4.30 pm, accused Nos.1 and 2 were found keeping the utensils and koda for the manufacture of illicit arrack at Vandenmedu in violation of the provisions of the Abkari Act. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Court, Nedumkandam. The case was committed to the Additional Sessions Court, Thodupuzha from where it was made over to the Trial Court. On the appearance of the accused, charges were framed against them for Crl.A No.2141 of 2007 3 the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they came to be tried by the Trial Court for the aforesaid offence. 5. The prosecution examined PWs.1 to 7 and proved Exts.P1 to P15 and MOs1 to 11. 6. After the closure of prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused Nos.1 and 2 guilty of the offence punishable under Section 55(g) of the Abkari Act and convicted them thereunder. 7. Heard Sri.Sojan Micheal the learned counsel for the appellants/accused and Sri.G.Sudheer, the learned Public Prosecutor for the respondent. 8. The learned counsel for the appellants/accused challenges the judgment of conviction and sentence on the following grounds: Crl.A No.2141 of 2007 4 a) The arrest of accused No.2 as pleaded by the prosecution is doubtful. b) The prosecution failed to establish that the contraband seized from the place of occurrence was subjected to chemical analysis in the Chemical Examiner’s Laboratory. 9. The alleged seizure was effected on 4.3.2004. The properties including the sample were produced before the Court only on 9.3.2004 which is evident from Ext.P14 property list. The prosecution has not offered any satisfactory explanation for the inordinate delay in the production of properties before the Court. 10. In Ravi v. State of Kerala [2011 (3) KLT 353], 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) 11. In Ravi's case (supra) the Division Bench held that Crl.A No.2141 of 2007 5 production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 12. 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. 13. At the time of seizure, the detecting officer had prepared Ext.P1 seizure mahazar. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. There is nothing to show that the specimen of the seal was produced before the Court. 14. 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. 15. Ext.P9 certificate of chemical analysis shows that the sample was forwarded to the laboratory on 9.3.2004. It reached the laboratory Crl.A No.2141 of 2007 6 on 10.3.2004. The sample was delivered to the laboratory by a Police Constable No.1622. The property clerk, who is the custodian of the sample in the court and the police officials who delivered the sample to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Nonexamination of those officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314]. 16. The resultant conclusion is that the prosecution failed to show that the contraband allegedly seized from the place of occurrence eventually reached the chemical examiner’s laboratory. Therefore, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 17. The prosecution alleges that accused No.2 was arrested from the spot. Exts.P12 and P13 are the arrest memos which contains the crime number. The presence of the crime number makes the arrest doubtful. The learned counsel relied on Santhosh V. State of Kerala [2021 (5) KHC 214] to substantiate his contention. In Santhosh (supra) this Court 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 Crl.A No.2141 of 2007 7 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)]” 18. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Exts.P12 and P13 arrest memos, a doubt arises as to the manner in which the seizure and arrest were effected. 19. 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 appellants/accused are entitled to the benefit of doubt. 20. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects Crl.A No.2141 of 2007 8 of the matter cannot, therefore, be sustained. The appellants/accused are, therefore, found not guilty of the offence punishable under Section 55(g) of the Abkari Act. They are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. SD/- K.BABU JUDGE ab