Criminal Appeal Nos.758 & 759 of 2008 (Anil Kumar & Suresh v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944** **CRL.A NO. 758 OF 2008** **AGAINST THE JUDGMENT IN SC 1552/2004 OF ADDITIONAL DISTRICT &** **SESSIONS COURT (FAST TRACK-I), TRIVANDRUM** ## **APPELLANTS/ACCUSED NOS.14&16:** 1 ANILKUMAR, S/O BABY, VERUVILAKATHU VEEDU, MOTTAMOODU, PALLIPPURAM VILLAGE, NEYYATTINKARA TALUK. 2 SURESH, S/O.MANIYAN, KADAVIL VEEDU, UNNANPARA, ANAKUDI DESOM, VAMANAPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.M.G.KARTHIKEYAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA CIRCLE INSPECTOR OF POLICE, ATTINGAL POLICE STATION, THIRUVANANTHAPURAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2022, ALONG WITH CRL.A.759/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.758 & 759 of 2008 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA,** **1944** **CRL.A NO. 759 OF 2008** **AGAINST THE JUDGMENT IN SC 1552/2004 OF ADDITIONAL DISTRICT** **& SESSIONS COURT (FAST TRACK-I), TRIVANDRUM** **APPELLANTS/ACCUSED 1,3 TO 12:** - 1 SATHEESAN, THADATHARIKATHU VEEDU, PALLIVETTA, ARYANAD VILLAGE, THIRUVANANTHAPURAM DISTRICT. - 2 RAJU, S/O.SUKUMARAN, LAKSHAM VEEDU PULIMATH DESOM, PULIMATH VILLAGE. - 3 SURESHKUMAR S/O.DIVAKARAN, GOPIKASADANAM VEEDU, CHUTTIYAMKONAM, KALLEKKAKAM MURI, ARYANAD VILLAGE, THIRUVANANTHAPURAM DISTRICT. - 4 ANILKUMAR, S/O.MANIYAN PILLAI, LAKSHAM VEEDU NO.8, PULIMATH DESOM, PULIMATH VILLAGE. - 5 SAJI, S/O.VASUDEVAN, LAKSHAM VEEDU NO.17, PULIMATH DESOM, PULIMATH VILLAGE. - 6 VINOD, S/O.SUDARSANAN, ROADARIKATHU VEEDU, MANKOTTUKONAM, PERUMBEZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. - 7 VINOD, S/O.SUSEELAN, SHYAMALALAYAM VEEDU, PERUMBAZHUTHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. - 8 PRABHAKARAN, S/O.SADASIVAN, ASWATHI NIVAS, KUDAVOOR DESOM, KANJIRAMKULAM VILLAGE. - 9 VIJAYAN, S/O.KRISHNAN VELIYAVILA PANAVILA VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. Crl.A Nos.758 & 759 of 2008 3 10 BIJU, S/O. SASIDHARAN, ENCHI PULLUVILLA VEEDU, MULLOOR DESOM, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK. 11 BAIJU, S/O.GOPI, VADAKKEVALIYAVILA VEEDU, MULLOOR, VIZHINJAM VILLAGE. BY ADV SRI.NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, CIRCLE INSPECTOR OF POLICE, ATTINGAL POLICE STATION, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2022, ALONG WITH CRL.A.758/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.758 & 759 of 2008 4 K.BABU, J. -------------------------------------Criminal Appeal Nos.758 & 759 of 2008 --------------------------------------Dated this the 16[th] day of December, 2022 ## JUDGMENT These appeals arise from the judgment dated 05.04.2008 passed by the Additional District and Sessions Court (Fast Track-I), Thiruvananthapuram in S.C No.1552/2004. Accused Nos.1, 3 to 12, 14 and 16 are the appellants. The appellants in Crl.A No.758/2008 are accused Nos.14 and 16 and the appellants in Crl.A No.759/2008 are accused Nos.1 and 3 to 12. 2. The prosecution case is that on 06.02.2002, Accused Nos.2 to 17 (in the original charge sheet) were found in possession of 17 cans each containing 35 litres of spirit kept in a car bearing registration No.KL-2A-7313 in the godown of a toddy shop managed by the Chirayinkeezhu Taluk Toddy Tappers Employee's Cooperative Society Ltd. 1418, in violation of the provisions of the Abkari Act. Crl.A Nos.758 & 759 of 2008 5 3. PW14, the Inspector of Police, Attingal conducted the investigation and submitted final report against the appellants and the other accused alleging offences punishable under Sections 55(a) and 57(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 Trial Court. Accused Nos.2, 13 and 15 died during the course of the proceedings in the Trial Court. Accused Nos. 1, 3 to 12, 14 and 16 faced the trial. Charge was framed against the accused, who faced the trial, under Section 55(a) of the Abkari act. They 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 14 and proved Exts.P1 to P14 and MO1 series. 5. After the closure of the prosecution evidence, 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 Crl.A Nos.758 & 759 of 2008 6 addressed on both sides, the Trial Court convicted accused Nos.1, 3 to 12, 14 and 16 for the offence punishable under Section 55(a) of the Abkari act. 6. Heard Sri. M.G.Karthikeyan, the learned counsel appearing for the appellants in Crl.A No.758/2008, Sri.Nireesh Mathew, the learned counsel appearing for the appellants in Crl.A No.759/2008 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 arrest of the appellants/accused is doubtful. (b) The prosecution failed to establish that the spirit allegedly seized from the place of occurrence eventually reached the hands of the Chemical Examiner. 8. The learned counsel for the appellants relying on Santhosh v. State of Kerala [2021 (5) KHC 214] contended that the very arrest as pleaded by the prosecution is doubtful in view of the presence of Crl.A Nos.758 & 759 of 2008 7 the crime number in Ext.P7 series of arrest memos. I have perused Ext.P7 series arrest memos. Arrest memos contain the crime number registered against the accused. While dealing with a similar fact situation, this Court in Santhosh 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)]” 9. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P7 series arrest memos, a doubt arises as to the manner in which the seizure and arrest were effected. 10. The learned counsel for the appellants relied on the Crl.A Nos.758 & 759 of 2008 8 following circumstances to contend that the spirit allegedly recovered from the scene of occurrence eventually reached the Chemical Examiner's Laboratory: - (i) The delay in the production of the properties (spirit seized) before the Court has not been satisfactorily explained by the prosecution. - (ii) The act of the property clerk drawing the sample from the contraband produced before the Court has no sanction of law. 11. The alleged seizure was effected on 07.02.2002. Exhibit P8 list of properties shows that the properties were produced before the Court only on 11.03.2002. PW10, the property clerk of the Court gave evidence that she received the properties, being 17 cans containing spirit, on 11.03.2002 and entered the same in the Thondi register as 68/02. PW10 made an attempt to clarify the delay in the production of the spirit before the Court stating that in Ext.P8 the learned Magistrate had initialled on 08.02.2002. She further clarified that from 08.02.2002 onwards the Government employees were on strike and she added that she came to the office only on Crl.A Nos.758 & 759 of 2008 9 11.03.2002. There is no satisfactory explanation for the custody of the spirit during the period from 07.02.2002 to 11.03.2002. The explanation given by PW10, the property clerk of the Court, is not satisfactory. 12. 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) In Ravis' 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. 13. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in Crl.A Nos.758 & 759 of 2008 10 the production of properties would lead to the conclusion that tampering with sample could not be ruled out. 14. The detecting officer had not drawn sample at the scene of occurrence. The spirit contained in 17 cans was produced before the Court on 11.03.2002. As per request of the Investigating Officer PW10, the property clerk of the Court, drew the sample from the bulk quantity of the spirit produced before the Court and forwarded the same to the Chemical Examiner for analysis. 15. The act of the property clerk in drawing the sample from the bulk quantity of the spirit produced before the Court is challenged by the defence on the ground that the procedure adopted has no sanction of law. 16. In Baburaj v. State of Kerala [2021 (6) KLT 416] this Court had considered the legality of the procedure in which the officer of the Court taking sample from the contraband produced before the Court. In Baburaj (supra) this Court held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight Crl.A Nos.758 & 759 of 2008 11 compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 17. In Baburaj (supra) this Court further held that as the procedure adopted in drawing sample from the contraband substance by the property clerk of the Court has no sanction of law, the Certificate of Chemical Analysis prepared based on the sample so drawn has no evidentiary value. Crl.A Nos.758 & 759 of 2008 12 18. Yet another aspect that requires consideration is the absence of the specimen of the seal in Ext.P12 forwarding note. The space meant for incorporating the specimen seal in Ext.P12 remained vacant. Since there is no material to show that the specimen of the seal was forwarded to the Chemical Examiner for verification, the genuineness of the sample forwarded is in doubt. 19. 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. 20. As the prosecution failed to establish that the spirit seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P14 Certificate of Chemical Analysis has no evidentiary value. I have already held that the alleged arrest is also doubtful. 21. 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 Crl.A Nos.758 & 759 of 2008 13 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. 22. 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]}. 23. In the instant case, the prosecution has miserably failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The appellants/accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 24. The upshot of the above discussion is that the judgment of conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In Crl.A Nos.758 & 759 of 2008 14 the result, the appellants/accused are acquitted of the offence alleged. They are set at liberty. The appeals are allowed as above. Sd/K.BABU, JUDGE KAS