Joy @ Jayarajkumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 ``` ``` CRL.A NO. 2942 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENTSC 843/2007 OF ADDITIONAL DISTRICT COURT ``` ``` (ADHOC), THRISSUR ``` ## **`APPELLANT/ACCUSED:`** ``` JOY @ JAYARAJKUMAR, JAYAMANDIR ARANGAMUGAL DESOM, ARALMOODU, ATHIYANNUR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. ``` ## **`BY ADV SRI.PIRAPPANCODE V.S.SUDHIR`** ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM, (EXCISE INSPECTOR, EXCISE RANGE OFFICE, PAZHAYANNUR). ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2942 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** ========================= ## **Criminal Appeal No.2942 of 2008** ========================= Dated this the 26[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 18.11.2008, passed by the Additional Sessions Judge, (Adhoc) Fast Track Court-I, Thrissur in S.C.No.843/2007, the 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 07.12.2004 the accused was found in possession of 3 litres of arrack at Pambadi in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant 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 ``` CRL.A NO. 2942 OF 2008 ``` ``` 3 ``` 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 P10 and MO 1. 5. After the closure of the prosecution evidence, 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. Pirappancode V.S. Sudheer, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. ``` CRL.A NO. 2942 OF 2008 ``` ``` 4 ``` 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds; - (i) The arrest of the accused as alleged by the prosecution is found to be doubtful. - (ii) The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The case of the prosecution is that the accused was arrested along with the contraband substance on 07.12.2004 from the place of occurrence. The defence challenged the arrest of the accused on the ground that the arrest memo was not produced and marked. 9. 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 ``` CRL.A NO. 2942 OF 2008 ``` ``` 5 ``` 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. 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' ``` CRL.A NO. 2942 OF 2008 ``` ``` 6 ``` 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 noncompliance 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 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 doubtful. ``` CRL.A NO. 2942 OF 2008 ``` ``` 7 ``` 12. Subsequent to the seizure, the properties including the sample were produced before the Court on 08.12.2004. Ext.P7 list of properties shows that, an officer of the Court received the sample on 08.12.2004. The further endorsement on Ext.P7 shows that, the Junior Superintendent of the Court received the sample on 14.12.2004. The sample was forwarded to the Laboratory as per letter dated 20.12.2004 through an Excise Guard by name Sri. A.R. Rejimon. The Property Clerk of the Court, Junior Superintendent of the Court and the Excise Guard, who delivered the sample to the Laboratory, were not examined as witnesses by the prosecution to rule out the possibility of the sample being changed or tampered with. The non examination of those officials is fatal to the prosecution as it failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. Omission on the part of the prosecution in examining those officials leads to the conclusion that it failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the ``` CRL.A NO. 2942 OF 2008 ``` ``` 8 ``` ## Apex Court in **State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314).** 13. Yet another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 20.12.2004, it was subjected to analysis only on 03.06.2006. 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.” ## 14. In the instant case, the delay of almost 18 ``` CRL.A NO. 2942 OF 2008 ``` ``` 9 ``` months in analysing the sample has not been explained by the prosecution. 15. In the present case, the prosecution failed to establish the arrest of the accused and seizure of the contraband substance from the possession of the accused. The prosecution also failed to show that the contraband substance allegedly seized from the place of occurrence eventually reached for analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P10 Certificate of Chemical Analysis has no evidentiary value to connect the accused with the contraband substance seized. 16. The resultant conclusion is that the prosecution has not succeeded in establishing the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the conviction and sentence passed against the accused cannot be sustained. The appellant/accused is, therefore, found not guilty of the offence alleged. He is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per the directions of this ``` CRL.A NO. 2942 OF 2008 ``` ``` 10 ``` Court shall be disbursed to the appellant/accused. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU