Damodaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 CRL.A NO. 2214 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 286/2001 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA ``` ## **`APPELLANT/S:`** ``` DAMODARAN, S/O RAMAN, NELLIVILA PUTHEN VEEDU, ELAMADU MURI, ELAMADU VILLAGE, KOLLAM, DISTRICT. BY ADVS. K.SIJU PRATHEESH.P ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, CHADAYAMANGALAM, THROUGH, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SRI RAJESH A ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2214 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 04.09.2008, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara, in Sessions Case No.286/2001, the accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 17.06.1999 at 8 p.m., the accused was found in possession of four litres of arrack at Edamulakkal in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs. 1 to 5 and proved Exts. P1 to P6 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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 defence, DW1 was examined. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55 (a) and 55(i) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 6. Heard Sri. Siju Kamalasanan, the learned counsel appearing for the appellant/accused and Shri. Rajesh A., the learned Special Government Pleader (Vigilance) appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- - (i) The arrest of the accused as alleged is doubtful in view of the fact that the prosecution failed to prepare arrest memo as required. - (ii) The prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The alleged arrest and seizure were effected on 17.06.1999 at 8 p.m. by the S.I. of Police Kadakkal (PW5). According to PW5, the accused was arrested from the place of occurrence along with contraband substance. ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** 9. The defence 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 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 ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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' 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. 11. This Court in **Ramankutty v. Excise Inspector, Chelannur Range** [2013 (3) KHC 308] had considered a ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** similar fact situation. This Court held that noncompliance 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 doubtful. 12. Ext.P1 is the seizure mahazar prepared at the scene of occurrence. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW5, the detecting officer has not given evidence as to the nature and description of the seal used. 13. Though the seizure was effected 17.06.1999, the properties including the sample were produced before the Court only on 10.08.1999 which is evident from Ext.P5 property list. 14. In **Ravi v. State of Kerala** [2011 (3) KHC 121] ``` CRL.A NO. 2214 OF 2008 ``` ..8.. on the question of delay 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.” 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. 15. 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. 16. The properties remained in the custody of the ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** property clerk of the Court. The sample was forwarded to the laboratory as per the letter dated 03.11.1999. The sample reached the laboratory only on 04.11.1999. The sample was delivered to the laboratory by a police constable No.4511. None of were those officials examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 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. 18. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** when the contraband 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 tamperproof condition. Relying on **State of Rajasthan v. Daulat 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 re-emphasized 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** (supra), this ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 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** (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 **Bhaskaran v. State of Kerala** (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. 21. 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 ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 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. 22. In the instant case, the prosecution failed to establish that the arrack allegelly seized from the place of occurrence evenutally reached the Chemical Examiner’s Laboratory. Therefore, Ext.P2 Certificate of Chemical Analysis has no evidentiary value. 23. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 24. 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 bulk quantity of the alleged contraband ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** substance said to have been seized from the possession of the accused [vide: **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 25. 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 benefit of doubt arising from the absence of link evidence as discussed above. 26. The upshot of the above discussion is that the conviction and sentence 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 offences punishable under Sections 55(a) and 55(i) 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 ; ``` CRL.A NO. 2214 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (iii) The accused is acquitted of the offences alleged ; (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj