CRL.A Nos. 800/2010 & 2214/2011 (Subramanian, Shaji and Lasar v. State of Kerala)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, ``` ## **`1944`** ``` CRL.A NO. 800 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 965/2008 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC), THRISSUR ``` ``` CP 32/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ``` ## **`CHALAKUDY`** ## **`APPELLANTS:`** - `1 SUBRAMANIAN, S/O KANDAKORAN PEEDAKERY HOUSE, PUTHENVELIKARA VILL,, KEEZHUPADAM.` - `2 SHAJI S/O. KANDAKORAN PEEDAKERY HOUSE, PUTHENVELIKARA VILL,, KEEZHUPADAM.` - `3 LASAR S/O. CHEEKUMA KONNATH HOUSE, PUTHENVELIKARA VILL,, THIRUTHIPURAM.` ``` BY ADV NIREESH MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SMT REKHA S. SR.(PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, ALONG WITH CRL.A.2214/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A Nos.800/2010 & 2214/2011 ..2.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, ``` ## **`1944`** ## **`CRL.A NO. 2214 OF 2011`** ``` AGAINST THE ORDER/JUDGMENT IN SC 249/2010 OF ADDITIONAL ``` ## **`DISTRICT COURT (ADHOC), THRISSUR`** ## **`APPELLANT:`** ``` SUNIL AGED 31 YEARS THYKKUTTATHIL HOUSE PUTHENVELIKKARA VILLAGE, PANJIPILLA, THRISSUR DISTRICT BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, ``` ``` KODUNGALLUR, THRISSUR DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY SMT. REKHA S. SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, ALONG WITH CRL.A.800/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A Nos.800/2010 & 2214/2011 ..3.. ## **JUDGMENT** ## **[CRL.A Nos.800/2010 & 2214/2011]** These two appeals arises from the judgment dated 23.09.2011 in SC No.249/2010 and judgment dated 06.03.2010 in S.C. No.965/2008 on the file of the Additional District and Sessions Court, Fact Track-I, Thrissur. The appellants in Crl.A.No.800 of 2010 are accused Nos. 1, 2 and 4 in SC No.965/2008. The appellant in Crl. Appeal No.2214/2011 is the accused No.3 in S.C.No.249/2010. The appellants/accused were convicted by the trial Court under Section 58 of the Abkari Act. 2. On 17.11.2007, the Sub Inspector of Police, Mala, PW1, detected the offence. The accused were found in possession of 90 litres of illicit arrack filled in nine cans. They were allegedly transporting the illicit arrack in a Maruti van bearing Regn No. KL-07 X 1825 CRL.A Nos.800/2010 & 2214/2011 **==> picture [20 x 8] intentionally omitted <==** through Poopathi – Valiyaparambu Pubilc Road Kuruvilassery within the jurisdiction of Mala Police Station, Thrissur District. The accused were arrested along with the contraband substance found in the vehicle by PW9. In the subsequent search based on a confession statement allegedly made by one of the accused, PW9 searched the residence of one of the accused and seized 5 litres of illicit arrack and 550 litres of wash and other implements and utensils used for manufacturing arrack. 3. The initial investigation was conducted by PW9, the Sub Inspector of Police, Mala. The investigation was thereafter transferred to PW10, the Sub Inspector of Police, Kodungalloor. PW10 completed investigation and submitted final report before the jurisdictional Magistrate alleging offences punishable under Sections 8(2) and 55(g) of the Abkari Act. 4. The case was committed to the Sessions Court, from where it was made over to the trial Court. On the appearance of the accused, charges under Sections 58 CRL.A Nos.800/2010 & 2214/2011 **==> picture [20 x 8] intentionally omitted <==** and 55(g) of the Abkari Act were framed. The accused pleaded not guilty to the charges and therefore they came to be tried by the trial Court for the aforesaid offences. The prosecution examined PWs 1 to 10 and proved Exts.P1 to P12 and MOs 1 to 10. 5. At the fag end of the trial, appellant in Crl.A.No.2214/2011 (accused No.3) absconded. The Court proceeded with the trial in respect of other accused (Accused Nos.1, 2 and 4). They were convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay a fine of Rupees one lakh each. 6. Accused No.3 subsequently surrendered before the Court and faced trial. The trial Court convicted him also under Section 58 of Abkari Act. All the accused were acquitted of the charge under Section 55(g) of the Abkari Act. 7. The learned counsel for the appellants challenges the judgment of conviction and sentence on CRL.A Nos.800/2010 & 2214/2011 **==> picture [20 x 8] intentionally omitted <==** the following grounds:- - (i) The final report in this case was submitted by an incompetent officer. - (ii) The prosecution failed to prove the arrest as alleged. - (iii) The prosecution also failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 17.11.2007 by the SI of Police, Mala (PW1). Admittedly the offence alleged was committed within the territorial jurisdiction of Mala Police Station. A part of the investigation was conducted by PW9. PW10, the Sub Inspector of Police, Kodungalloor took over investigation and submitted final report before the Court. The learned counsel for the appellant contended that PW10, the Sub Inspector of Police, Kodugnalloor, who submitted the final report was not empowered to do so under Section 50 of the Abkari CRL.A Nos.800/2010 & 2214/2011 **==> picture [20 x 8] intentionally omitted <==** Act as the alleged offence was committed within the territorial limits of Mala Police Station. The powers of Abkari Officer empowered by the Government to exercise the same under Sections 31 to 35, 38, 40 to 53 and 59 within the jurisdiction of Mala Police Station had vested with the Sub Inspector of Police, Mala, PW1. The Officer competent to file a final report as provided under Section 50 is only the Abkari officer namely the Sub Inspector of Police, Mala or an Officer superior to him having conferred with the jurisdictional power. In the present case, the final report was submitted by PW10 in his capacity as Sub Inspector of Police, Kodungalloor. The prosecution has not offered any explanation as to the power or authority of Sub Inspector of Police, Kodungallor to submit final report in respect of an offence alleged to have been committed in the territorial jurisdiction of Mala Police Station. Admittedly, PW10, the Officer who submitted the final report is not an Abkari Officer competent to exercise powers under Section 50 of CRL.A Nos.800/2010 & 2214/2011 **==> picture [20 x 8] intentionally omitted <==** the Abkari Act within the territorial jurisdiction of the Mala Police Station. The learned counsel for the appellants/accused relying on Saji @ Kochumon v. State of Kerala [2010 (3) KHC 259] submitted that the illegality committed by PW10 is not curable in character and the same cut the root of the prosecution. ## 9. In **Saji @ Kochumon v. State of Kerala** (Supra) this Court held thus:- “when the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person other than an Abkari Officer as defined under Section 50 of the Abkari Act, there is total lack of jurisdiction for taking cognizance of an offence if cognizance is taken on a final report not submitted by an Abkari Officer and it is not an irregularity covered by Chapter XXXV of Code of Criminal Procedure but a total illegaility and therefore, the cognizance taken, trial conducted and the conviction and sentence are all illegal”. In the present case, the prosecution must fail on this ground alone. 10. The defence also challenges the arrest of the accused as alleged. In **D.K.Basu v. State of West Bengal** [1997 (1) SCC 416], the Apex Court directed that CRL.A Nos.800/2010 & 2214/2011 **==> picture [20 x 8] intentionally omitted <==** 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. 11. It is relevant to note that, in the instant case, the CRL.A Nos.800/2010 & 2214/2011 **==> picture [26 x 8] intentionally omitted <==** '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' and 'arrest intimation' were not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The noncompliance 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 the ground. 12. 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 CRL.A Nos.800/2010 & 2214/2011 **==> picture [26 x 8] intentionally omitted <==** 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 doubtful. 13. The learned counsel for the appellant further contended that the prosecution has also failed to prove that the contraband substance allegedlly seized from the place occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. The learned counsel relied on the following circumstances to substantiate his contentions:- (a) Ext.P1 seizure mahazar, the contemporaneous document prepared to evidence search and seizure does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) The Detecting Officer has not given evidence CRL.A Nos.800/2010 & 2214/2011 **==> picture [26 x 8] intentionally omitted <==** as to the nature of the seal used. (c) The various officials who handled the sample during its transit from the Court to the laboratory were not examined. 14. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The specimen of the seal was not produced before the Court at the time of production of sample and other properties. The Detecting Officer, PW9, has not given evidence as to the exact nature and description of the seal used by him at the time of drawing the sample. The sample remained in the custody of the property Clerk of the Court and the police official who delivered the sample in the Laboratory. Those officials were not examined by the prosecution. Non-examination of these two witness is fatal to the prosecution in the sense that the prosecution failed to rule out the possibility of the sample being changed or tampered with while in their custody. This view is fortified CRL.A Nos.800/2010 & 2214/2011 **==> picture [26 x 8] intentionally omitted <==** by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314]. 15. In the instant case the prosecution also failed to prove that the sample drawn at the scene of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance. 16. 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 appellant/accused is therefore found not guilty of the offence punishable under Section 58 of the Abkari Act. In the result, ## (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused are acquitted of the offence alleged; CRL.A Nos.800/2010 & 2214/2011 **==> picture [26 x 8] intentionally omitted <==** - (iv) They are set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. **Sd/K. BABU, JUDGE** **kkj**