Crl.A Nos. 1669 of 2006 & 713 of 2008

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 ``` ``` CRL.A NO. 713 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT SC 299/2006 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC), MANJERI ``` ## **`CP 32/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR APPELLANT/S:`** ``` 1ASHARAF, S/O. MOIDU, KANDAPPACHAL HOUSE, VELLAMUNDA AMSOM, DESOM,, WAYANAD DISTRICT. 2SHEHEER, S/O. MUHAMMED, VATTAKANDI, NIHAL MANZIL, VELLAMUNDA AMSOM, DESOM,, WAYANAD DISTRICT. BY ADVS. P.VIJAYA BHANU (SR.) P.MAYA ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SRI SANGEETHARAJ ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2023, ALONG WITH CRL.A.1669/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 CRL.A NO. 1669 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENT SC 4/2003 OF ADDITIONAL DISTRICT COURT (ADHOC), MANJERI ``` ## **`CP 32/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR APPELLANT/ACCUSED NO.3:`** ``` MAMMOOTTY, S/O. ABDULLA, AGED 1 YEARS VAZHAYIL HOUSE, VELLAMUNDA, WAYNAD DISTRICT. BY ADVS. SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE,, TIRUR POLICE STATION - THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,, KOCHI-31. BY PUBLIC PROSECUTOR SRI SANGEEETHARAJ ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2023, ALONG WITH CRL.A.713/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A Nos. 1669 of 2006 & 713 of 2008 --------------------------------------------- ## Dated this the 12[th] day of June, 2023 ## **JUDGMENT** These two appeals arise from FIR No. 435/2000 of Tirur Police station. Appellants in Crl.A. No. 713/2008 are accused nos. 1 and 2. Appellant in Crl. A. No. 1669/2006 is accused no.3. 2. The appellant in Crl.A. No.1669/2006 faced trial in S.C. No. 4/2003. The other appellants in Crl.A. No. 713/2008 faced trial in S. C. No. 299/2006, as they were not available for trial while proceeding against appellant in Crl.A.No.1669/2006. 3. As per judgment dated 29.7.2006 the appellant in Crl.A.No.1669/2006 was convicted under Section 55(a) of the Abkari act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs. 1 Lakh. Appellants in Crl.A. No. 713/2008 were convicted as per judgment dated 03.4.2008 under Section 55(a) of the Abkari act and sentenced to undergo rigorous imprisonment for a period of two years each and pay a fine of Rs. 1 ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 4 ``` Lakh each. 4. The prosecution case is that on 26/9/ 2000 at 11:30 p.m. the appellants/ accused nos. 1,2 & 3 were transporting spirit in a secret tank in a Tata Sumo car bearing No. T. N. 09.H. 3933 at Tirur, in violation of the provisions of the Abkari act. 5. After completing the investigation final report was submitted against the accused for the offence punishable under Sec. 55(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. On the appearance of the accused charge was framed against them for the offence punishable under Sec. 55(a) 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. 6. In S.C. No. 4/2003, the prosecution examined PWs 1 to 8 and proved Exhibits P1 to P11 and MOs. I & II. In S.C. No. 299/2006, the prosecution examined PWs 1 to 9 and proved Exhibits P1 to P12 and MOs. 1 & 2. 7. Heard Sri.Vijayabhanu, the learned senior counsel appearing ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 5 ``` for the appellant/accused and Sri. Sangeetha Raj, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants challenges 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 spirit allegedly seized from the accused was subjected to examination in the Chemical Examiner's Laboratory. 9. The defence challenges the arrest of the accused. It is submitted that arrest of the accused is doubtful in view of the presence of Crime Number in the arrest memos. The arrest memos contain the number of the crime registered against the accused. 10. While dealing with a similar factual situation this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] 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 ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 6 ``` 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)** ].” 11. In the absence of any explanation offered by the prosecution with regard to the presence of Crime Number in the arrest memos, a doubt arises as to the manner in which the seizure and arrest were effected. 12. The defence also challenges the prosecution case on the ground that it failed to show that the very same contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 13. The alleged seizure was effected on 27.9.2000. Ext.P11 property list shows that the properties including the sample reached the Court only on 29.9.2000. The prosecution has not offered any satisfactory explanation regarding the delay in production of properties before the Court. 14. In **Ravi v. State [2011 (3) KHC 121]** on the question of delay ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 7 ``` 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 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.” 15. 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. 16. 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. 17. 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. ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 8 ``` 18. 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. 19. 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 tamper-proof condition. Relying on **State of Rajasthan 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 reemphasized on the requirement of strict compliance with the ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 9 ``` 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 shown to have been performed. This Court specified that the presumption under S. 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)** . 20. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 21. 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 ``` Crl.A.Nos. 1669 of 2006 & 713 of 2008 ``` ``` 10 ``` 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]}. 22. 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. 23. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeals are allowed as above. **Sd/K.BABU JUDGE** TKS