Gangadharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944** **CRL.A NO. 1955 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 660/2007 OF ADDITIONAL SESSIONS** **COURT(ADHOC),FAST TRACK COURT-I, THRISSUR CP 72/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKKANCHERRY** ## **APPELLANT/ACCUSED:** GANGADHARAN, S/O. GOPALAN, EZHANAYIL HOUSE, PANGARAPPILLY VILLAGE, MANGALAMKUNNU DESOM, THALAPPILLY TALUK. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA ## **RESPONDENT/RESPONDENT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1955 of 2008 2 K.BABU, J. -------------------------------------Criminal Appeal No.1955 of 2008 --------------------------------------Dated this the 22[nd] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 29.07.2008, passed by the Additional Sessions Court (Adhoc), Fast Track Court No.I, Thrissur in S.C.No.660/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 11.11.2004 at about 8.00 p.m., the appellant/accused was found carrying a black 5 litre can kept in a plastic sling bag while he was at Elanad-Meppadam Road at Pandarachira Desom, Thalappilly Taluk. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 8(2) 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.1955 of 2008 3 the accused, charge was framed against him for the offence punishable under Section 8(2) 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 6 and proved Exts.P1 to P8 and MOs 1 and 2. 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 for the aforesaid offence. 6. Heard Sri. Santhosh P.Poduval, 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.1955 of 2008 4 - (i) The arrest of the accused as pleaded by the prosecution is doubtful. - (ii) The prosecution failed to show 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 based on the foundation that the accused was arrested on 11.11.2004 along with the contraband substance. 9. The defence disputes the arrest of the appellant on the ground that 'arrest memo' was not prepared and produced before the Court. 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 Crl.A No.1955 of 2008 5 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' 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 were arrested while possessing the contraband substance would fall to ground. Crl.A No.1955 of 2008 6 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. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory: - (i) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have Crl.A No.1955 of 2008 7 been affixed on the bottle containing the sample. - (ii) The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner's Laboratory. 13. I have gone through Ext.P1 seizure mahazar, wherein the detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. Forwarding note/requisition for sending sample to the laboratory has not been produced and marked. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verification. 14. 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. 15. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of Crl.A No.1955 of 2008 8 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. 16. 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. 17. 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. 18. In the absence of any evidence to show that the contraband substance seized at the place of occurrence was Crl.A No.1955 of 2008 9 subjected to analysis in the Chemical Examiner's Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 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.1955 of 2008 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. The appellant/accused is, therefore, not guilty of the offence alleged. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS