Jiju v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 CRL.A.No. 2308 of 2008 (H) ------------------------------AGAINST THE JUDGMENT IN SC 902/2007 of ADDITIONAL SESSIONS COURT (ADHOC)-I, THRISSUR DATED 27-09-2008 ------ APPELLANT/ACCUSED: ------------------------- JIJU, S/O.OUSEPH, PORAI HOUSE KUTTICHIRA VILLAGE, VYLATHRA DESOM. BY ADV. SRI.A.C.DEVY RESPONDENT/STATE: ------------------------ THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SMT.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.2308 of 2008 -----------------------------------------------Dated this the 22[nd] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thrissur, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for two months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Vellikkulangara Police Station, and his party were on patrol at about 2.30 p.m. on 04-02-2005. While so, PW3 received reliable information that Crl. Appeal No.2308 of 2008 -2- the appellant was selling arrack on the side of a road. Soon, PW3 and his party went to that place when the appellant was seen carrying a two litre black jerrycan in his right hand and a glass tumbler in his left hand. On examining the jerrycan, full of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW3 then and there. PW3 had drawn two samples of 180 ml. each of arrack in two bottles from the bulk contained in the jerrycan. The sample bottles were sealed. The jerrycan containing rest of the arrack was also sealed. 25 ten rupee notes were found at the loin of the appellant. All these items were seized by PW3 under Ext.P3 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 and his party reached Vellikkulangara Police Station with the appellant, properties and the records. PW3 registered Crime No.35 of 2005 of that Police Station in respect of the occurrence. Ext.P5 is the F.I.R. thus drawn by PW3. He had produced the appellant, properties including samples and the records before the Judicial First Class Crl. Appeal No.2308 of 2008 -3- Magistrate's Court, Chalakudy. Ext.P6 is the List of Property. PW3 had conducted investigation of the case. He had questioned the witnesses and recorded their statements. PW1, the Sub Inspector of Police, Vellikkulangara Police Station, had submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thrissur, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P6 and M.O.1 to M.O.3 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him Crl. Appeal No.2308 of 2008 -4- thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the appellant was found in possession of two litres of arrack in a jerrycan at about 3.00 p.m. on 04-02-2005 and PW3 arrested him then and there and seized the contraband under Ext.P3 Seizure Mahazar in the presence of witnesses. PW3 does not have a case in Ext.P3 Seizure Mahazar that an Arrest Memo was prepared while arresting the appellant and an intimation of arrest was given to a person to whom such an arrest intimation has to be issued. None of the official witnesses examined in this case had a case that Arrest Memo was prepared and arrest intimation was served. 6. This Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** , dealing with the necessity of preparing Arrest Memo and Arrest Notice, has held as follows: Crl. Appeal No.2308 of 2008 -5- “7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in _D. K. Basu v. State of West Bengal_ . The specific case of the prosecution is that the Revision petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in _D. K. Basu's case_ . It is apposite to have a look at the said directions of the Supreme Court which read as follows: Crl. Appeal No.2308 of 2008 -6- “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 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.” The prosecution has no case that they have complied the said directions. I am of the opinion that the non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum or arrest, beyond reasonable Crl. Appeal No.2308 of 2008 -7- doubt.” 7. In the case on hand, the non-preparation of Arrest Memo and the non-service of intimation of arrest render the prosecution case a doubtful one. The appellant, at least, is entitled to the benefit of doubt for this reason. 8. It is the prosecution case that the appellant was found in possession of arrack at about 3.00 p.m. on 04-02-2005 and he was arrested and the contraband was seized by PW3. Thereafter, PW3 reached Vellikkulangara Police Station and registered a case in respect of the occurrence. PW3 had produced the properties before the court on 05-02-2005 as could be seen from Ext.P6 List of Property with which the properties were produced before the court. Whether the properties were kept under safe custody after they were seized and till they were produced before the court on 05-02-2005? Where those properties were kept? No answers are forthcoming from the prosecution. PW3, the Detecting Officer and the Investigating Officer, or PW4, the Police Constable who claimed to have accompanied PW3 at Crl. Appeal No.2308 of 2008 -8- the time of detecting the offence, have not deposed before the court as to whether the properties were kept under safe custody or not during that period. The evidence of PW1 also keeps mum with regard to this aspect. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned single Judge of this Court observed as follows: - “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit is to be extended to the appellant. 9. Ext.P1 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in both the samples. It is also certified in Ext.P1 that the seals on the Crl. Appeal No.2308 of 2008 -9- bottles were intact and found tallied with the sample seal provided. Whose sample seal was provided? PW3 deposed that he had prepared a Forwarding Note and submitted it before the court for subjecting the samples to chemical analysis. But, a copy of the Forwarding Note was not marked in this case. A copy of the Forwarding Note is not available among the records. If a copy of the Forwarding Note affixed with a sample seal of the seal affixed on the sample bottles was produced and tendered in evidence which would have been helpful for finding out whether a sample seal was available with the Chemical Examiner for comparison with the seal affixed on the sample bottles. Such a link evidence is missing in this case. Moreover, the clerk who was dealing with the properties in the court was not examined. Had he been examined, some light would have been available as to whether the properties were sent along with a Forwarding Note describing the samples and providing a sample impression of the seals affixed on the sample bottles. But, such a witness was not examined. Therefore, there is no Crl. Appeal No.2308 of 2008 -10- assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant in this case. 10. This Court in **Rajamma v. State of Kerala (2014** - **(1) KLT 506)** has held as follows: “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala** **(2011 (3) KLT 353)** has held that the prosecution can Crl. Appeal No.2308 of 2008 -11- succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, Ext.P1 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 11. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 12. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by Crl. Appeal No.2308 of 2008 -12- him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE