Jayakumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 CRL.A NO. 751 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 28.03.2007 IN SC 778/2002 OF THE ADDITIONAL SESSIONS COURT (ABKAR CASES), KOTTARAKKARA APPELLANT/ACCUSED: ``` ``` JAYAKUMAR, S/O KUTTAN PILLAI, NELLIVILA VEEDU,OYOOR MURI, VELINALLOOR VILLAGE. ``` ``` BY ADV VINOY VARGHESE KALLUMOOTTILL ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SMT. REKHA S. -SR.PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD FINALLY ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.751 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 751 of 2007 --------------------------------------------- Dated this the 22[nd] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 28.03.2007, passed by the Additional Sessions Court (Abkari cases), Kottarakkara in Sessions Case No.778/2002, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 12.02.2000 at 5.00 p.m., the appellant/accused was found in possession of 15 plastic covers each containing 100 ml of arrack at Oyoor 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 over to the trial Court. On the appearance of the accused charges were framed against him for the offences ``` Crl.A.No.751 of 2007 ``` ``` 3 ``` 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 4 and proved Exts. P1 to P4 and MOs I to III. 5. After the closure of the evidence on behalf of the prosecution, 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. 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. 6. Heard Sri. Vinjoy Varhese Kallumoottil, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. During the pendency of this appeal, the learned defence counsel produced the death certificate of the accused which forms part of the records. The learned defence counsel on 16.06.2002 sought time to get instructions from the near relatives of the ``` Crl.A.No.751 of 2007 ``` ``` 4 ``` accused. The learned counsel submitted that the near relatives have not turned up to proceed with the appeal. Since the appeal relates to a composite sentence of imprisonment and fine, the appeal shall not abate and this Court is bound to decide the appeal on merits. Law on this point has been declared by the Apex Court in **Ramesan v. State of Kerala [(2020) 3 SCC 45]** . 8. The offence was detected by PW2, the then Circle Inspector of Police. According to PW2, on 12.02.2000, the accused was arrested along with the contraband substance at Oyoor. Essentially, the prosecution case rests on the arrest of the accused. Strangely enough, neither the arrest memo nor arrest intimation is seen produced and marked in this case. 9. In **D.K. Basu v. State of West Bengal M [(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 ``` Crl.A.No.751 of 2007 ``` ``` 5 ``` 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 the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. 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 the 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 ``` Crl.A.No.751 of 2007 ``` ``` 6 ``` 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 arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 12. I have carefully gone through the materials placed before the Court. Ext.P3 property list shows that the properties, including the sample, were produced before the Court only on 04.04.2000. The inordinate delay in the production of the properties including the sample has not been explained by the prosecution. 13. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the 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 ``` Crl.A.No.751 of 2007 ``` ``` 7 ``` ## 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. 14. 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. 15. 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. PW2, the detecting officer has not given evidence as to the nature of the seal used. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory to ascertain the genuineness of the sample forwarded to the laboratory. The prosecution has not adduced any evidence as to the date on which the sample was forwarded to the laboratory. Ext.P4 Certificate of Chemical Analysis shows that the sample was sent to the laboratory as per letter dated 11.04.2000 of the Judicial First Class Magistrate Court-II, Kottarakara. The inference, therefore, is that the official concerned received the sample from the Court on 11.04.2000. Ext.P4 further shows that ``` Crl.A.No.751 of 2007 ``` ``` 8 ``` the sample reached the laboratory only on 12.04.2000. The sample remained in the custody of the property clerk of the Court till 11.04.2000. It was delivered in the laboratory by a Police Constable No.4715. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 16. 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. 17. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of 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. 18. 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 ``` Crl.A.No.751 of 2007 ``` ``` 9 ``` a tamper-proof 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 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 S. 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)** . 19. 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 ``` Crl.A.No.751 of 2007 ``` ``` 10 ``` satisfy the genuineness of the sample produced in the court. 20. 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. 21. 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 proweather in manali next 15 dayssecution 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. 22. This is a case in which the prosecution has not succeeded in proving that the contraband substance produced before the Court was subjected to analysis in the laboratory. Therefore, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. There is also unexplained delay of analysis of the sample in the laboratory. Though the sample reached the ``` Crl.A.No.751 of 2007 ``` ``` 11 ``` laboratory on 12.04.2000, it was subjected to analysis only on 01.06.2001. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 23. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 24. The prosecution was unable to establish the link connecting the accused with the contraband substance seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of the link evidence as discussed above. 25. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital ``` Crl.A.No.751 of 2007 ``` ``` 12 ``` aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. The Court below shall disburse the amount deposited by the appellant as per the directions of this Court in accordance with law. ``` Sd/- K.BABU JUDGE ``` VPK