Jayaram v. State of Kerala

1 Criminal Appeal No.2280 of 2007 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944 CRL.A NO. 2280 OF 2007** **AGAINST THE ORDER/JUDGMENTSC 390/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** JAYARAM, S/O.SUKUMARAN VADAKKEDATHU HOUSE, KEERITHODU KARA, KANJIKUZHY VILLAGE. BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SRI.L.RAJESH NARAYAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Criminal Appeal No.2280 of 2007 **K.BABU, J** . -------------------------------------- Criminal Appeal No.2280 of 2007 --------------------------------------Dated this the 26[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 30.10.2007 passed by the Additional Sessions Court, Thodupuzha in Sessions Case No.390/2006 the accused has preferred this appeal. The appellant was convicted under Secion 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay fine of Rs.1 Lakh. 2. The prosecution case is that on 26.07.2004 at 6.15 p.m the accused was found in possession of 1¼ litres of illicit arrack in a rubber plantation at Keerithodu, Idukki district. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to 3 Criminal Appeal No.2280 of 2007 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 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 7 and proved Exts.P1 to P7 and MOs 1 and 2. 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 has in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him 4 Criminal Appeal No.2280 of 2007 thereunder. The accused was sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.100,000/- under Section 8(2) of the Abkari Act. 6. Heard Sri.B.Renjith Marar, the learned counsel 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 submitted as follows: (i) There is delay in the production of the sample and other properties before the Court. (ii) The prosecution failed to establish that the contraband articles allegedly seized from place of occurrence eventually reached the Chemical Examiner's Laboratory.(iii) The prosecution case to the effect that the accused was arrested from the scene of occurrence is doubtful in view of the fact that Ext.P3 contains the Crime Number. 8. The learned Public Prosecutor submitted that the prosecution successfully established the offence alleged 5 Criminal Appeal No.2280 of 2007 against the accused. 9. The first contention of the learned counsel for the appellant is that, there is delay in sending the properties, including the sample, to the Court. The alleged incident took place on 26.07.2004. Exhibit P5, list of properties sent to the Court, shows that the material objects were produced before the court on 28.07.2004. 10. In **Ravi v. State of Kerala [2011 (3) KHC 121]** 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: 1. 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 6 Criminal Appeal No.2280 of 2007 place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” 11. 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. 12. 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. 13. The learned counsel for the accused vehemently contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by different persons. It is borne out from the evidence that the sample changed several hands before reaching the Public 7 Criminal Appeal No.2280 of 2007 Analyst. It remained in the custody of the thondi clerk till 05.08.2004. The sample was handed over to Police Constable who delivered the same to the Analyst, on 06.08.2004. None of these witnesses were examined to show that the sample was in their safe custody and the seals were not tampered with. Relying on **State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]** this Court in **Sasidharan v. State of Kerala [2007 (1) KHC 275]** held that in cases where sample changed several hands, the prosecution can succeed only if it is established that the sample ultimately reached the hands of the chemical examiner in a tamper proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. In the instant case, due to non-examination of the above referred officials who handled the sample, the prosecution failed to establish that the sample ultimately reached the hands of the chemical examiner in a tamper-proof condition and 8 Criminal Appeal No.2280 of 2007 that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. 14. The learned counsel for the appellant/accused disputed the arrest of the accused relying on the presence of Crime Number in Ext.P3, arrest memo and contended that the arrest of the accused from the spot is doubtful. Ext.P3 contains Crime No. 68/2004 registered against the accused. 15. This Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] has considered a similar fact situation. In **Santhosh** (supra) this Court 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 9 Criminal Appeal No.2280 of 2007 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(3) KHC 715)].” 16. 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. 17. The upshot of the above discussion is that the prosecution failed to establish that the contraband articles allegedly seized from the place of occurrence 10 Criminal Appeal No.2280 of 2007 eventually reached the hands of the Chemical Examiner and that it was the appellant who was in possession of the contraband substance at the scene of occurrence. The appellant/accused is, therefore, not guilty of the offence punishable under Section 8 (2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk