Charlie Mayiladumpara Veedu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** **CRL.A NO. 754 OF 2008** **AGAINST THE ORDER OF CONVICTION AND SENTENE PASSED IN SC 654/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA** ## **APPELLANT/ ACCUSED:** **CHARLIE MAYILADUMPARA VEEDU, MAYILADUMPARA,, ERAIPEROOR MURI & VILLAGE, PATHANAMTHITTA.** **BY ADVS. SRI.AJITH MURALI SRI.K.V.ANIL KUMAR SRI.C.S.SUNIL CHANDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **SMT. REKHA.S (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.754 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.754 of 2008** --------------------------------------Dated this the 10[th] day of November, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 02.04.2008, passed by the Additional Sessions Court (Adhoc), Fast Track Court-II, Pathanamthitta in S.C.No.654/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 30.09.2004 at 5.40 p.m., the accused was found possessing a white plastic bottle containing 750ml of arrack on the eastern side of the residence of one Mathai Kannoli in Puramattom village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 8(2) of the Abkari Act before the Crl.A.No.754 of 2008 3 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 & 2 and proved Exts.P1 to P10, and MOs I, II & MO III series . 5. 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 for the aforesaid offence. Crl.A.No.754 of 2008 4 6. Heard Sri. Ajith Murali, 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/accused challenged the judgment of conviction and sentence on the following grounds. a) The arrest and seizure as alleged by the prosecution are doubtful. b) The prosecution failed to establish that the contraband allegedly seized from the place of occurrence was subjected to Chemical Analysis. 8. According to the prosecution the accused was arrested from the scene of occurrence on 13.9.2004 along with the contraband substance. The learned counsel for the appellant contended that the alleged arrest is doubtful. The learned counsel relied on the presence of Crime Number in Ext. P2 arrest memo to sbstantiate his contention. Ext. P2 arrest memo contains the number of the crime registered against the accused. Crl.A.No.754 of 2008 5 ## 9. 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. 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 the crime Crl.A.No.754 of 2008 6 number in Ext.P2 arrest memo, a doubt arises as to the manner in which arrest and seizure were effected. 11. PW2, the Detecting Officer had drawn sample at the scene of occurrence. He had prepared Ext. P1 seizure mahazar to evidence seizure. 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. The detecting officer who had drawn the sample has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory. Ext. P7, the requisition for sending sample does not contain the specimen of the seal used by the detecting officer. The space meant for incorporating the specimen seal is left vacant. 12. 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 Crl.A.No.754 of 2008 7 to enable the Court to satisfy the genuineness of the sample produced in the Court. 13. In **Rajamma v. State of Kerala (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. 14. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext. P7, the requisition for sending sample does not contain the date of forwarding the sample to the Laboratory. The learned Magistrate has not countersigned in Ext.P7 forwarding note. As per Ext.P6, the properties including the sample were produced before the Court on 01.10.2004. It remained in the custody of property clerk till the same was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was delivered in the laboratory on 23.12.2004 by Crl.A.No.754 of 2008 8 a Police Constable No.2088. Neither the property clerk nor the police constable who delivered the sample in the laboratory was examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to establish the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314).** So, the necessary conclusion is that the prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused eventually reached the laboratory. 15. As the prosecution failed to show that the contraband substance seized from the scene of occurrence was subjected to analysis in the Chemical Examiners Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 16. The resultant conclusion is that the prosecution failed to establish the link connecting the accused with contraband seized and the sample analysed in the laboratory. The accused Crl.A.No.754 of 2008 9 is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU JUDGE** AP