Criminal Appeal Nos. 1823 & 1927 of 2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944** **CRL.A NO. 1823 OF 2008** **AGAINST THE JUDGMENT IN SC 59/2008 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-I, KOTTAYAM** ## **APPELLANT/ACCUSED NO.2:** VINOD, S/O.KUNJUMON KIDANGIL HOUSE, PARAL VAZHAPPALLY, CHANGANACHERRY. BY ADV SURIN GEORGE IPE ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA,S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2022, ALONG WITH CRL.A.1927/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.1823. & 1927 of 2008 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 CRL.A NO. 1927 OF 2008** **AGAINST THE JUDGMENT IN SC 59/2008 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I), KOTTAYAM** **APPELLANT/ACCUSED NO.1:** JOHN, S/O JOSEPH,VARICKATTU HOUSE, PARAL, VAZHAPPALLY. BY ADV SRI.M.P.MADHAVANKUTTY ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA,S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, ALONG WITH CRL.A.1823/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.1823. & 1927 of 2008 3 ## K.BABU, J. -------------------------------------Criminal Appeal Nos.1823 & 1927 of 2008 --------------------------------------Dated this the 27[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 26.07.2008, passed by the Additional District and Sessions Judge (Adhoc)-I, Kottayam in S.C.No.59/2008, the two accused (Accused Nos.1 and 2) have preferred these appeals. The appellants were convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of 1 year each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 29.10.2003 at 5.30 p.m, at Paral near Anjilikuzhi padasekharam the appellants were found in possession of 11 ½ litres of illicit arrack by the Excise Inspector, Changanacherry Excise Range. 3. After completing the investigation, final report was submitted against the appellants for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class 4 Crl.A Nos.1823. & 1927 of 2008 Magistrate Court, Changanacherry. The case was committed to the Sessions Court, Kottayam from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 8(2) 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. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P7 and MOs 1 to 8 series. 5. After the closure of the 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants for the aforesaid offence. 6. Heard Sri. M.P.Madhavankutty, the learned counsel appearing for accused No.1, Sri. Surin George Ipe, the learned 5 Crl.A Nos.1823. & 1927 of 2008 counsel appearing for accused No.2 and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: - (a) The inordinate delay in the production of the articles, including the sample, before the Court by the detecting officer has not been explained by the prosecution. - (b) The prosecution failed to establish the genuineness of the sample produced before the Court. 8. According to the prosecution, the contraband substance was seized from the possession of the accused on 29.10.2003. PW4, the detecting officer gave evidence that the sample was produced before the Court on 30.10.2003 itself. The property clerk of the Court, examined as PW7, submitted that the properties, including the sample, were produced before the Court on 04.11.2003. Exhibit P4, the property list also shows that the properties, including the sample, were produced before the Court only on 04.11.2003. The necessary inference is that the sample and the properties were Crl.A Nos.1823. & 1927 of 2008 6 produced before the Court on 04.11.2003 and the prosecution has not given any satisfactory explanation for the delay in the production of the properties. 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) 9. In Ravi's case (supra) the Division Bench held that production of the property before the court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 10. 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 sample could not be ruled out. Crl.A Nos.1823. & 1927 of 2008 7 11. The learned counsel for the appellant further contended that the prosecution failed to ensure the genuineness of the sample produced before the Court in view of the fact that the detecting officer has not narrated the nature and description of the seal in Ext.P2 seizure mahazar, which evidences the seizure and drawing of sample at the scene of occurrence. 12. I have carefully gone through Ext.P2, which contains no narration and description of the seal stated to have been affixed on the sample drawn at the scene of occurrence. 13. 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. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court {Vide: Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), Achuthan v. State of Kerala [2016 (1) KLD 391], Krishnadas v. State of Kerala (2019 KHC 191)}. Crl.A Nos.1823. & 1927 of 2008 8 14. The defence also disputes the arrest of the appellants. 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 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. 15. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed before the 9 Crl.A Nos.1823. & 1927 of 2008 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 were arrested while possessing the contraband substance would fall to ground. The non-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. 16. 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 Crl.A Nos.1823. & 1927 of 2008 10 ## highly doubtful. 17. The resultant conclusion is that 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 and the appellants were arrested from the scene as alleged. 18. Therefore, the conviction recorded and sentence passed by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellants/accused are, therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. They are acquitted of the charge. They are set at liberty. The appeals are allowed as above. Sd/K.BABU, JUDGE KAS