Criminal Appeal Nos.1216 and 1218 of 2007 (Jayaprakash v. State of Kerala; BalAN and Rajan v. State of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** **CRL.A NO. 1216 OF 2007** **AGAINST THE JUDGMENT DATED 06-06-2007 IN SC 157/2006 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.III (ADHOC), MANJERI,** ## **MALAPPURAM** ## **APPELLANT/ACCUSED NO.1:** JAYAPRAKASH, S/O. SANKARAN, PALLIYALITHODI HOUSE, PATHAKKARA, ERAVIMANGALAM. BY ADV VINOD VALLIKAPPAN ## **RESPONDENT/COMPLAINANT & STATE:** THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, ALONG WITH CRL.A.1218/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.1216, 1218 of 2007 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943 CRL.A NO. 1218 OF 2007** **AGAINST THE JUDGMENT DATED 06-06-2007 IN SC 157/2006 OF ADDITIONAL SESSIONS COURT FAST TRACK NO.III (ADHOC),** **MANJERI, MALAPPURAM** **CP 3/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **PERINTHALMANNA, MALAPPURAM** ## **APPELLANT/ACCUSED NO.2 AND 3:** 1 BALAN, S/O. CHATHAN, KUNNINPURATH HOUSE, PATHAKKARA, ERAVIMANGALAM. 2 RAJAN, S/O SUBRAMANIAN, PARASSERI PARAMBU HOUSE, NEAR KAKKOTH COMMUNITY HALL, PERINTHALMANNA. BY ADV VINOD VALLIKAPPAN ## **RESPONDENT/COMPLAINANT/STATE:** STATE OF KERALA, REPRESNTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2021, ALONG WITH CRL.A.1216/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.1216, 1218 of 2007 3 ## **K.BABU, J.** **--------------------------------------** ## **Criminal Appeal Nos.1216, 1218 of 2007** --------------------------------------Dated this the 23[rd] day of September, 2021 ## **JUDGMENT** The appeals arise from the judgment dated 06-06-2007 in Sessions Case No.157/2006 on the file of the Additional Sessions Court Fast Track-III (Adhoc), Manjeri. The appellant in Criminal Appeal No.1216/2007 is accused No.1. Appellants 1 and 2 in Criminal Appeal No.1218/2007 are accused Nos.2 and 3 respectively. 2. By the impugned judgment the appellants were convicted of the offence under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 25-09-2005 at about 21.00 hrs at Olinkara in Pathakkara Amsom, the accused were found in possession of 8 litres of illicit arrack. According to prosecution, they were 4 Crl.A Nos.1216, 1218 of 2007 found transporting the contraband substance in an autorickshaw bearing registration No.KL-10/E 3153. The additional Sub Inspector of Police, Perinthalmanna detected the offence. 4. After completion of the investigation, the final report was submitted against the accused for the offence punishable under section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Perinthalmanna. The case was committed to the Sessions Court, Manjeri 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. 5. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P13 and MOs 1 and 3. 6. After closure of the evidence on behalf of the prosecution, the statements of the accused under Crl.A Nos.1216, 1218 of 2007 5 Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused are guilty of offence under Section 8(2) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo rigorous imprisonment for a term of 2 years and to pay a fine of Rs.1 Lakh each. 7. Heard Sri.Vinod Vallikappan, the learned counsel for the appellants and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. PW1, at the time of occurrence, was the Additional Sub-Inspector of Police attached to Perinthalmanna Police Station. On 25-09-2005 around 9.00 p.m, the police team led by him was on patrol duty Crl.A Nos.1216, 1218 of 2007 6 on the Perinthalmanna-Cherpulassery road. When he reached Olinkara, PW1 searched the auto-rickshaw involved in this case. He found the accused in the auto-rickshaw. The accused No.1 was the driver of the vehicle and the other accused were sitting on the back seat. PW1 found a 5-litre can, two half litre bottles and one 2-litre bottle containing illicit arrack. PW1 seized the contraband substances and arrested the accused. He prepared Ext.P1 seizure mahazar. He collected samples, 250ml each, in four bottles from the contraband substance seized and sealed the same. PW1 produced the accused and the contraband substances before PW8, the Principal Sub-Inspector of Police. 9. PWs 2 and 6, the police officials who had accompanied PW1, supported the prosecution case. PWs 3 and 4, the independent witnesses examined to prove the incident proper, did not support the prosecution case. PW5 is an attester to Ext.P1 scene mahazar. PW8 conducted the investigation and submitted the final Crl.A Nos.1216, 1218 of 2007 7 report. 10. The learned counsel for the appellants/ accused contended that the prosecution failed to establish that the contraband substances allegedly seized from the place of occurrence were eventually subjected to analysis in the Chemical Examiner's laboratory. To substantiate his contentions, the learned counsel relied on the following circumstances: - (a) The nature and description of the seal stated to have been affixed on the bottles containing the sample had not been narrated in Ext.P1 seizure mahazar. - (b) The evidence tendered by the prosecution witnesses presented conflicting versions regarding the nature of the seal used. - (c) The inordinate delay in the production of the properties including the samples before the Court has not been satisfactorily explained by the prosecution. Crl.A Nos.1216, 1218 of 2007 8 (d) There is no evidence to show that the specimen impression of the seal used by the detecting officer had been produced before the Court and forwarded to the Chemical Examiner for verification. 11. The alleged seizure was on 25-09-2005. Exhibit P11 property list shows that the properties including the samples were produced before the Court only on 30-09-2005. The explanation given by PW8, the Investigating Officer, is that he had initially entrusted a Police Constable to produce the properties including the samples before the Judicial First Class Magistrate Court, Nilambur. According to PW8, the properties including the samples were returned from the Magistrate Court, Nilambur, with the instruction to produce before the Judicial Magistrate of First Class, Perinthalmanna, the Jurisdictional Magistrate. PW8 added that he received the properties including the samples on 26-09-2005 itself and forwarded them to the 9 Crl.A Nos.1216, 1218 of 2007 Jurisdictional Magistrate on 28-09-2005. He further stated that the properties were received in the Court only on 30-09-2005. It is pertinent to note that PW8 was unaware of the police official with whom the properties including the samples were forwarded to the Court. No convincing materials have been produced before the Court to show that the samples were produced before the Court initially on 26-09-2005 before the Magistrate Court, Nilambur and thereafter, on 28-09-2005 before the Judicial Magistrate of First Class, Perinthalmanna. 12. The only contemporaneous document available is Ext.P11 property list, which would show that the properties including the samples were produced before the Court on 30-09-2005. The explanation offered by PW8 regarding the delay in the production of the properties including the samples before the Court is not acceptable. 13. I hod that the prosecution failed to offer Crl.A Nos.1216, 1218 of 2007 10 satisfactory explanation for the delay in the production of the samples before the Court. 14. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] 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)_ The Division Bench held that the production of the property should take place without unnecessary delay, and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no explanation for the delayed production of the property. Unexplained delay in the Crl.A Nos.1216, 1218 of 2007 11 production of the properties, including the bottles containing the sample, would lead to the conclusion that tampering with the samples could not be ruled out. 15. Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure and drawing of samples, is silent regarding the nature and description of the seal stated to have been affixed on the bottles containing the sample by the detecting officer. 16. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), this Court held that the specimen of the seal shall be provided in the seizure mahazar and the same shall be produced before the Court to satisfy the genuineness of the sample produced in the Court. 17. Inconsistency in the version given by PW1, the detecting officer, and other official witnesses affects the credibility of the case of the prosecution that the bottles containing the sample were produced before the Court in a tamper-proof condition. PW1 deposed that he had affixed seal with the impression 'SHO'. PWs 2 and 12 Crl.A Nos.1216, 1218 of 2007 6, the other official witnesses, stated that the impression of the seal was 'HCO'. This inconsistency in the version given by the official witnesses fundamentally affects the credibility of the prosecution case. This is more important when the prosecution failed to produce the specimen impression of the seal before the Court and got it marked in evidence. The impression seen affixed in Ext.P9, the copy of the forwarding note, is found to be not legible and hence it is not sufficient to verify the seal stated to have been affixed on the bottles containing the sample by the Chemical Examiner. 18. The learned Public Prosecutor submitted that the impression contained in Ext.P9 is 'HCO'. However, in view of the specific version of PW1 that the impression of the seal affixed by him at the place of occurrence was 'SHO' the possibility of tampering with the seal on the bottles containing the sample cannot be ruled out. Crl.A Nos.1216, 1218 of 2007 13 19. Exhibit P9, the copy of the forwarding note, does not contain the name of the official with whom the samples were forwarded to the Chemical Examiner's laboratory. The date on which the samples were forwarded to the laboratory is also not discernible from Ext.P9. The learned Magistrate, who countersigned Ext.P9, failed to indicate the date on which he affixed his initial/signature. Exhibit P10, certificate of chemical analysis, shows that a Police Constable No.2749 delivered the samples before the laboratory on 24-10-2005. 20. While dealing with a similar fact situation, this Court in _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], held thus: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note._ Crl.A Nos.1216, 1218 of 2007 14 _This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 21. In the instant case, the prosecution failed to examine the property clerk of the Court or the police official concerned to establish the tamper-proof despatch of the samples to the laboratory. 22. As discussed above, PW8 gave evidence that he was unaware of the name of the police official through 15 Crl.A Nos.1216, 1218 of 2007 whom the bottles containing the sample were forwarded to the Court. According to him, initially the bottles containing the sample were forwarded to the Court on 26-09-2005, then on 28-09-2005 and thereafter, on 30-09-2005. The prosecution failed even to mention the name of the police constables or police officials who handled the bottles containing the sample during the transit from the Police Station to the Court. The bottles containing the sample remained in the custody of the property clerk. There is no evidence to show the name of the police official who received the bottles containing the sample from the Court for delivering the same to the Chemical Examiner's laboratory. Ext.P10 certificate of chemical analysis report would show that the samples were delivered to the laboratory by Police Constable No.2749. Hence, it is evident that several persons handled the bottles containing the sample. None of the aforementioned officials were examined by the prosecution to establish that while in their custody Crl.A Nos.1216, 1218 of 2007 16 the seals on the bottles containing the sample were not tampered with. The inevitable consequence of this omission is that the prosecution failed to establish the tamper-proof handling and despatch of the sample to the laboratory [See: _**State of Rajasthan v. Daulat Ram**_ (AIR 1980 SC 1314)]. 23. The learned counsel for the accused challenged the genuineness of the arrest of the accused on the ground that the arrest memos were not prepared by the detecting officer. In view of the directions contained in _**D.K.Basu v. State of West Bengal**_ (1997 KHC 245 = AIR 1997 SC 610), it was mandatory on the part of the police officer, who arrested the accused to prepare an arrest memo. The arrest memos allegedly prepared in this case have not been produced before the Court. 24. This Court in _**Ramankutty v. Excise Inspector, Chelannur Range**_ [2013 (3) KHC 308] had considered a similar fact situation. This Court held that noncompliance of mandatory requirements to be complied Crl.A Nos.1216, 1218 of 2007 17 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 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. 25. The case of the prosecution herein is built upon the arrest of the accused at the scene of occurrence from the vehicle involved in this case. When the prosecution failed to establish the arrest of the accused due to the non-production of the arrest memos, the entire case of the prosecution falls to the ground. 26. Yet another aspect, brought to the notice of this Court by the learned counsel for the accused is that the genuineness of the sample allegedly collected from the scene of occurrence is doubtful in view of the version of PW2, to the effect that, he was unaware of the source of the bottles that were used for collecting Crl.A Nos.1216, 1218 of 2007 18 the sample. The detecting officer has not given any convincing evidence that sterilised bottles were used for collecting the sample. 27. 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 co-related. 28. 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]}. 29. In the instant case, the prosecution was unable to establish the link connecting the accused Crl.A Nos.1216, 1218 of 2007 19 with the contraband seized and the sample analysed in the laboratory. The prosecution also failed to establish the arrest of the accused. The accused are hence entitled to the benefit of doubt. 30. The upshot of the above discussion is that the conviction entered 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