Harikumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 1862 OF 2008`** ``` AGAINST THE UDGMENT IN SC 607/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA ``` ``` CP 111/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR APPELLANT/S: ``` ``` HARIKUMAR HARIMANGALAM VEEDU,, PUTHAMKARA KURI, ENADHIMANGALAM VILLAGE,, PATHANAMTHITTA. BY ADVS. SRI.AJITH MURALI SRI.K.V.ANIL KUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY SMT S. REKHA,SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1862 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 30.07.2008, passed by the Additional Sessions Court (Adhoc – II), Pathanamthitta in Sessions Case No.607 of 2005, the accused has preferred this appeal. The appellant was convicted under Section 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 1½ years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 01.09.2003 at 4.00 pm the accused was found in possession of 70 litres of wash in two jerry cans near a plantain standing in his residential compound at Adoor in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the jurisdictional Magistrate. The case was committed to ``` CRL.A NO. 1862 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(g) 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 4 and proved Exts. P1 to P7 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. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(g) of the Abkari Act and convicted him ``` CRL.A NO. 1862 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** thereunder. 6. Heard Sri. Ajith Murali, 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 challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the wash allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- (1) The arrest of the accused is doubtful. (2) There is no evidence to show that the bottles containing the sample were sealed at the scene of occurrence by the Detecting Officer . (3)Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have ``` CRL.A NO. 1862 OF 2008 ``` ..5.. been affixed on the bottle containing the sample. (4)The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner’s Laboratory to ensure the genuineness of the sample produced for examination. (5)The custody of the sample during the interregnum from 08.10.2003 to 05.11.2013 has not been explained by the prosecution. 9. The learned counsel for the appellant challenged the very arrest of the accused as pleaded by the prosecution relying on the ground that Ext.P2 arrest memo contains the number of the crime registered against the petitioner. The arrest memo contains the number of crime registered against the petitioner. The prosecution has not offered any explanation as to the presence of crime number in Ext.P2. 10. While dealing with a similar fact situation, this ``` CRL.A NO. 1862 OF 2008 ``` ..6.. ## 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 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 genuineness of the prosecution case. The seizure of the contraband substance and the arrest of the accused, reluctantly 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(3) KHC 715)].” 11. In the absence of any explanation as to the ``` CRL.A NO. 1862 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** presence of crime number in Ext.P2, the arrest of the accused is doubtful. 12. Ext.P1 is the seizure mahazar prepared contemporaneously by PW3, the Detecting Officer. 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. There is no evidence to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. The forwarding note was not produced and marked. 13. In the absence of any evidence to show that the specimen seal was forwarded to the Chemical Examiner, this Court cannot enter into a conclusion that the Chemical Examiner had got an opportunity to verify the genuineness of the sample produced for chemical analysis. 14. In **Bhaskaran v. State of Kerala** (2020 KHC ``` CRL.A NO. 1862 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 15. 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. 16. 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 ``` CRL.A NO. 1862 OF 2008 ``` ..9.. prosecution could not establish the tamper-proof 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. 17. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner’s Laboratory. Ext.P6 Certificate of Chemical Analysis would show that the bottles containing the sample were forwarded to the laboratory as per letter dated 08.10.2003 of the Judicial First Class Magistrate Court, Adoor. Ext.P6 would further show that the sample reached the laboratory only 05.11.2003. In the absence of any evidence as to the date on which the sample was forwarded to the laboratory, the necessary inference is that the sample was forwarded to the laboratory on 08.10.2003 itself. The prosecution has not given explanation as to the custody of the sample during the ``` CRL.A NO. 1862 OF 2008 ``` ..10.. ## interregnum from 08.10.2003 to 05.11.2003. 18. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC ## 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 19. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the ``` CRL.A NO. 1862 OF 2008 ``` ..11.. laboratory in a tamper-proof condition. 20. In the present case though the Property Clerk was examined, she has not given any explanation regarding the custody of the sample from 08.10.2003 to 05.11.2003 Therefore, the necessary inference is that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. 21. As the prosecution has failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance seized. 22. 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 offence punishable under ``` CRL.A NO. 1862 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** Section 55(g) 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 is acquitted of the offence alleged ; (iv) He is set at liberty. **Sd/K. BABU, JUDGE** kkj