Devasahayam v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944** **CRL.A NO. 882 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 512/2004 OF ADDITIONAL DISTRICT** **AND SESSIONS COURT (FAST TRACK-I), THIRUVANANTHPAURAM** ## **APPELLANT/ACCUSED:** DEVASAHAYAM, RAJ BHAVAN, PUTHENKADA, KARUMANOOR DESOM, PARASSALA VILLAGE, THIRUVANANTHPAURAM. BY ADV SRI.G.SUDHEER ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUOTR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.882 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.882 of 2007 --------------------------------------Dated this the 10[th] day of August, 2022 ## JUDGMENT Aggrieved by the judgment dated 11.05.2007, passed by the Additional District and Sessions Court (Fast Track-I), Thiruvananthapuram in S.C.No.512/2004, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 13.12.2001 at 7.05 p.m, the accused was found in possession of 2.600 litres of Indian Made Foreign Liquor in four bottles, three bottles containing 750 ml and one bottle containing 350 ml having a capacity of 750 ml and also a glass tumbler for the purpose of sale at punnakkada in Parassala Village. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(i) and 58 of the Abkari Act before the jurisdictional Crl.A No.882 of 2007 3 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, 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 11 and proved Exts.P1 to P11 and MOs I to III . 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. G.Sudheer, 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 challenged the Crl.A No.882 of 2007 4 judgment of conviction and sentence on the following grounds: - (i) The act of drawing sample by the property Clerk of the Court and forwarding the same to the laboratory has no sanction of law. - (ii) The prosecution failed to establish that the liquid allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory. - (iii) The alleged arrest of the accused from the scene of occurrence is doubtful. 8. It is alleged that the accused was arrested by PW7, the Sub Inspector of Police, Parassala on 13.12.2001 along with the contraband substance. 9. The learned counsel for the accused disputed the arrest of the accused. The learned counsel relying on the presence of Crime number in Ext.P3 arrest memo, contended that the arrest of the accused from the spot is doubtful. Exhibit P3 contains the number of the Crime (475/2001) registered against the accused. While dealing with a similar fact situation, this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus: Crl.A No.882 of 2007 5 “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)]” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P3 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel for the appellant/accused further contended that the procedure adopted by the jurisdictional Magistrate directing the property clerk to draw the sample from the bulk quantity of the liquor produced before the Court has no sanction of law. Admittedly, the detecting officer had not collected sample from the place of occurrence. The detecting officer produced the bulk quantity of the liquor before the Court with the Crl.A No.882 of 2007 6 requisition to collect the sample. The property clerk of the Court as per the instruction of the learned Magistrate collected sample from the bulk quantity of liquor produced before the Court. While dealing with the legality of the act of the property clerk collecting the sample as per the instruction of the learned Magistrate was considered by this Court in Baburaj v. State of Kerala [2021 (6) KLT 416]. In Baburaj's case (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 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. Crl.A No.882 of 2007 7 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.” 12. In Baburaj's case (supra), this Court further held that the drawing of sample from the contraband substance produced before the Court by the officer of the Court as per the instruction of the learned Magistrate is not a procedure established by law and therefore, the Certificate of Chemical Analysis obtained based on the sample so drawn has no evidentiary value. The consequence is that Ext.P10 Certificate of Chemical Analysis has no evidentiary value. On this ground alone, the prosecution must fail. 13. Exhibit P5 is the seizure mahazar prepared at the scene of occurrence evidencing the seizure of the contraband. Exhibit P5 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the contraband seized from the place of occurrence. 14. 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 Crl.A No.882 of 2007 8 the Court to satisfy the genuineness of the sample produced in the Court. 15. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory. Forwarding note/requisition for sending sample has not been marked in this case. 16. 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. 17. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamperproof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. Crl.A No.882 of 2007 9 18. In the instant case, the prosecution failed to show that the sample drawn from the contraband substance seized was subjected to analysis in the Chemical Examiner's Laboratory. 19. 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. 20. 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]}. 21. 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. Crl.A No.882 of 2007 10 22. 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. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS