Christopher, S/o Varghese v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 29[TH] DAY OF JUNE 2022 / 8TH ASHADHA, 1944 ``` ``` CRL.A NO. 1452 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 1492/2005 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`KOLLAM`** ## **`APPELLANT/ACCUSED:`** ``` CHRISTOPHER, S/O VARGHESE, MUKULUVALA VEEDU, NEAR KUMBALAM CHURCH, MULAVANACHERRY, MULAVANNA VILLAGE ``` ## **`BY ADV S.SREEKUMAR (KOLLAM)`** ## **`RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT REKHA S, SR. PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1452 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** ======================== ## **Criminal Appeal No.1452 of 2008** ======================== Dated this the 29[th] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 17.06.2008, passed by the Additional District & Sessions Judge, (ADHOC)-II Kollam in S.C.No.1492/2005, the accused has preferred this appeal. The appellant was convicted under Sections 55 (g) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.2 Lakh. 2. The prosecution case is that on 28.02.2001 the accused was found engaged in the manufacture of liquor at his residence of Mukuluvila Veedu, Mulavana. The Detecting Officer seized 20 litres of wash and 5 litres of arrack from the possession of the accused. He also seized utensils for manufacturing arrack. 3. After completing the investigation, final report was submitted against the appellant for the offences punishable under Sections 55(a), 55 (i) and 55(g) of the ``` CRL.A NO. 1452 OF 2008 ``` ``` 3 ``` Abkari 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, charges were framed against him for the offences punishable under Sections 55(g) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 3 and proved Exts.P1 to P5 and MOs 1 to 6. 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 offences. 6. Heard Sri. S. Girish, the learned counsel ``` CRL.A NO. 1452 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 challenged the judgment of conviction and sentence on the following grounds: - (i) The arrest of the accused as alleged by the prosecution is doubtful. (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. 8. The case of the prosecution is that, PW2 the Additional Sub Inspector of Police, Kundra Police Station arrested the accused from his residence on 28.02.2001 along with 20 litres of wash and 5 litres of arrack and other utensils for manufacturing illicit arrack. 9. The learned counsel for the appellant challenged the arrest of the accused on the ground that no arrest memo was prepared. Ext.P1 Seizure Mahazar ``` CRL.A NO. 1452 OF 2008 ``` ``` 5 ``` prepared at the scene of occurrence did not mention the preparation of arrest memo. The arrest memo has not been produced and marked. This is not a case where the Detecting Officer prepared the arrest memo at the time of arrest and failed to produce the same before the Court. 10. 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 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 ``` CRL.A NO. 1452 OF 2008 ``` ``` 6 ``` 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. 11. 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 the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The noncompliance 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 the ground. 12. This Court in **Ramankutty v. Excise** ``` CRL.A NO. 1452 OF 2008 ``` ``` 7 ``` **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 doubtful. 13. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing that the wash and arrack allegedly recovered from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 14. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions; 1. The prosecution has not offered any explanation for the delay in the production of ``` CRL.A NO. 1452 OF 2008 ``` ``` 8 ``` properties including the sample before the Court. 2. The specimen seal was not produced before the Court and the nature of the seal used was not described in Ext.P1 seizure mahazar. 15. Ext.P3 list of properties shows that the properties including the sample were produced before the Court only on 02.03.2001. The delay in the production of the properties including the sample has not been explained by the prosecution. 16. In **Ravi v. State of Kerala & another** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We therefore, answer the reference as follows; It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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) ## 17. In **Ravi’s Case** (Supra) the Division Bench held ## that production of the property before the Court should ``` CRL.A NO. 1452 OF 2008 ``` ``` 9 ``` take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 18. 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. 19. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The Detecting Officer has not given evidence as to the nature of the seal used. The specimen of the seal was not produced at the time of production of the sample before the Court. Forwarding note has not been produced and marked. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory to enable the analyst to ascertain the genuineness of the sample produced for analysis. The sample remained in the custody of the property clerk of ``` CRL.A NO. 1452 OF 2008 ``` ``` 10 ``` the Court till 16.03.2001. The sample was forwarded to the laboratory through Police Constable No. 431. Those witnesses were not examined by the prosecution. Failure on the part of the prosecution to examine those officials is fatal to the prosecution as the prosecution could not rule out the possibility of the sample being changed or tampered with. 20. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 21. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to ``` CRL.A NO. 1452 OF 2008 ``` ``` 11 ``` be established by the prosecution. 22. In **Sasidharan v. State of Kerala [2007 (1) KLT 720],** this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamperproof condition. Relying on **State of Rajastan v. Daulath Ram [AIR 1980 SC 1314]** in Sasidharan (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In **Sathi v. State of Kerala [2007 (1) ILR 718 (Ker.)],** this Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In Sathi (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was ``` CRL.A NO. 1452 OF 2008 ``` ``` 12 ``` shown to have been performed. This Court specified that the presumption under Section 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in Sasidharan (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . 23. 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. 24. In the instant case the prosecution failed to show that the wash and arrack allegedly seized from the place of occurrence was analyzed in the Chemical Examiner's Laboratory. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. ``` CRL.A NO. 1452 OF 2008 ``` ``` 13 ``` 25. 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 corelated. 26. 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 (1) KHC 275]}. 27. The prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 28. The upshot of the above discussion is that the ``` CRL.A NO. 1452 OF 2008 ``` ``` 14 ``` conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU