Chathoth Ajithkumar @ Gundu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 2465 OF 2008`** ``` AGAINST THE ORDER/JUDGMENTSC 401/2007 OF ADDITIONAL ``` ``` SESSIONS COURT (ADHOC)-II, THALASSERY ``` ## **`APPELLANT:`** ``` CHATHOTH AJITHKUMAR @ GUNDU S/O.ACHU, AGED 30 YEARS, BEENA NIVAS,, SIVAPURAM AMSOM, KANHILERI. BY ADV SRI.SUNNY MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA INSPECTOR OF POLICE, MALOOR POLICE STATION,, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, OF KERALA, ERNAKULAM. ``` ``` BY SR PUBLIC PROSECUTOR SMT REKHA S. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl A No. 2465 of 2008 2 ## **JUDGMENT** Aggrieved by the judgment dated 26.09.2008, passed by the Additional Sessions Court (Adhoc – II), Thalassery in Sessions Case No.401 of 2007, 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 term of six months and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 17.03.2006 at 6.30 pm the accused was found in possession of two litres of illicit arrack at Sivapuram in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the Crl A No. 2465 of 2008 3 trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(a) 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 4 and proved Exts P1 to P8. 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 adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. 6. Heard Sri. Sunny Mathew., the learned counsel Crl A No. 2465 of 2008 4 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. 8. The alleged seizure and arrest were effected on 17.03.2006 by Sub Inspector of Police, Maloor Police Station, PW1. According to the prosecution, the petitioner was arrested from the place of occurrence along with the contraband substance. The learned counsel contended that the arrest of the accused as pleaded by the prosecution is doubtful in view of the Crl A No. 2465 of 2008 5 presence of the crime number in Ext.P2 arrest memo. I have gone through Ext.P2 arrest memo which contains the crime number registered against the petitioner. 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 Crl A No. 2465 of 2008 6 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. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. To evidence the seizure, PW1 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. The specimen of the seal was not produced before the Court to ensure the genuineness of the sample. 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 Crl A No. 2465 of 2008 7 in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 13. The properties including the sample were produced before the Court on 18.03.2006. The Junior Superintendent of the Court received the sample. The sample remained in the custody of the Property Clerk of the Court which was later forwarded to the laboratory through a Police Constable No.4483. The date on which the sample was forwarded to the laboratory is not evident from materials produced before the Court. The sample was delivered in the laboratory on 08.05.2006. The Junior Superintendent of the Court, Property Clerk of the Court and the Police official who received the sample from the Court and delivered the same in the laboratory were not examined by the prosecution. This also supports the case of the defence that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. This view is fortified by the decision of the Apex Court in **State of Rajasthan v.** Crl A No. 2465 of 2008 8 **Daulat Ram** [AIR (1980) SC 1314]. 14. As the prosecution has failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance seized. 15. 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 58 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; (iv) He is set at liberty ; Crl A No. 2465 of 2008 9 (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