CRL.A NO. 1422 OF 2007 AGAINST THE JUDGMENT IN SC 463/2001 OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 110/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **CRL.A NO. 1422 OF 2007** **AGAINST THE JUDGMENT IN SC 463/2001 OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 110/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-II,NEYYATTINKARA** ## **APPELLANT/ACCUSED:** MANIYAN, S/O CHELLAPPAN, SIYONKUNNU VEEDU, KOLIYOOR DESOM, VENGANOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, BY ADV. SMT. REKHA.S. (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1422 of 2007 2 K.BABU, J. -------------------------------------Criminal Appeal No.1422 of 2007 --------------------------------------Dated this the 27[th] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 25.06.2007, passed by the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara in S.C.No.463/2001, the appellant/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 three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.02.1999 at 7.45 p.m., the appellant/accused was found in possession of 8 ½ litres of arrack at Muttaykkadu Desom in Venganoor Village. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 58 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. On the appearance of Crl.A No.1422 of 2007 3 the accused, charge was framed against him for the offence punishable under Section 58 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 P10 and MOs 1 to 3. 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. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. G.P.Shinod, the learned counsel 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/accused challenged the judgment of conviction and sentence on the following grounds: Crl.A No.1422 of 2007 4 - (i) The arrest of the accused as alleged by the prosecution is doubtful. - (ii) The act of drawing sample by the property clerk of the Court as per the instruction of the jurisdictional Magistrate has no sanction of law. - (iii) The prosecution failed to prove that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. 8. The prosecution case is that on 09.02.1999 at about 7.45 p.m, the Sub Inspector of Police, Thiruvallom Police Station (PW3) arrested the accused along with the contraband substance at the scene of occurrence. 9. The defence disputes the arrest of the appellant. 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 Crl.A No.1422 of 2007 5 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. 10. 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' Crl.A No.1422 of 2007 6 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 is 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. 11. 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 highly doubtful. 12. Admittedly, no sample was drawn at the scene of occurrence by the detecting officer. PW4, the property clerk stated Crl.A No.1422 of 2007 7 that he had drawn sample from the bulk quantity of the arrack produced before the Court. The act of drawing sample by the property clerk as per the instruction of the learned Magistrate is under vehement challenge. 13. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] considered the legality of drawing sample by the property clerk. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or Excise official concerned. The relevant portion of the judgment in Baburaj (supra) is extracted below: “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 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 Crl.A No.1422 of 2007 8 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.” 14. In Baburaj's case (supra) this Court further held that as the procedure adopted in drawing sample from the contraband substance by the property clerk is not a procedure established by law, no evidentiary value can be given to the Certificate of Chemical Analysis obtained based on the sample so drawn. On this ground alone, the prosecution must fail. 15. The learned counsel further contended that the prosecution also failed to show that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 16. The learned counsel relied on the following circumstances Crl.A No.1422 of 2007 9 ## to substantiate his contentions: - (a) The delay in the production of the property before the Court has not been properly explained by the prosecution. - (b) The specimen of the seal used by the detecting officer was not produced before the Court. - (c) Exhibit P2 seizure mahazar does not contain the - nature and description of the seal used by the detecting officer. - (d) The delay in bringing the sample to the laboratory after obtaining the same from the Court has not been explained by the prosecution. 17. The alleged seizure was effected on 09.02.1999. Exhibit P4, the list of properties, shows that the properties were produced before the Court only on 11.02.1999. 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' Crl.A No.1422 of 2007 10 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. 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 the sample could not be ruled out. 19. Exhibit P6, the Certificate of Chemical Analysis, shows that the sample was forwarded to the laboratory as per letter dated 29.05.1999 of the jurisdictional Magistrate. Exhibit P6 further shows that the sample reached the laboratory only on 02.06.1999. The prosecution has not offered any explanation for the delay in bringing the sample to the laboratory. The Police official, who Crl.A No.1422 of 2007 11 delivered the sample to the laboratory, was not examined to rule out the possibility of the sample being changed or tampered with. 20. Exhibit P7, the forwarding note/requisition for sending the sample, shows that no specimen seal was forwarded to the Chemical Examiner to verify the genuineness of the sample produced. 21. 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. 22. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 23. In Sasidharan v. State of Kerala [2007 (1) KLT 720] , this Crl.A No.1422 of 2007 12 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 tamper-proof condition. Relying on State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (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 reemphasized 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's case (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was 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's case (supra) and Crl.A No.1422 of 2007 13 Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 24. In Bhaskaran K. v. State of Kerala and another (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 in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 25. 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. 26. In the instant case, the prosecution has not succeeded in showing that the arrack allegedly seized from the place of occurrence was subjected to analysis in the laboratory which form the basis of Ext.P6 report. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.1422 of 2007 14 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 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. 30. The upshot of the above discussion is that the conviction Crl.A No.1422 of 2007 15 entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS