Joy, S/o Francis v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944** **CRL.A NO. 1855 OF 2008** **AGAINST THE JUDGMENT IN SC 400/2006 OF ADDITIONAL SESSIONS COURT,** ## **ADHOC-II, THALASSERY** ## **APPELLANT/ACCUSED:** JOY, S/O FRANCIS, KUNNATH HOUSE, VAYATHUR AMSOM, KADAMANAKKANDY, THALASSERY TALUK. BY ADVS. V.V.ASOKAN (SR.) P.P.RAMACHANDRAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA (SHO ULIKKAL POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV SR PP SMT.REKHA S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1855 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.1855 of 2008 --------------------------------------Dated this the 7[th] day of July, 2022 ## JUDGMENT This appeal arises from the judgment dated 04.08.2008 in S.C No.400/2006 on the file of the Additional Sessions Court, Adhoc-II, Thalassery. The appellant was convicted and sentenced to undergo simple imprisonment for a term of two years and pay a fine of Rs.1 Lakh under Section 58 of the Abkari Act. During the course of proceedings, the appellant/accused died. The wife of the accused was granted leave to continue the appeal. 2. The prosecution case is that on 21.05.2005 at 09.00 p.m., the accused was found possessing 18 packets, each containing 100 ml of arrack for sale on the western side of Vattiyamthodu-Mattara public road at Kadamankandy in Kannur District. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was Crl.A No.1855 of 2008 3 made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 55(a) 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 5 and proved Exts.P1 to P9. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the accused for the aforesaid offence. 6. Heard Sri. V.V.Asokan, 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 challenged the judgment of conviction and sentence on the following grounds: Crl.A No.1855 of 2008 4 - (i) The arrest and seizure, as pleaded by the prosecution, are doubtful. - (ii) The prosecution failed to show that the liquor allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The prosecution case is that the detecting officer effected arrest and seizure on 21.05.2005. According to the detecting officer, the accused was arrested along with the contraband substance at the place of occurrence. 9. The learned counsel for the appellant disputed the arrest of the accused. The learned counsel, relying on the presence of Crime number in Ext.P2 arrest memo, contended that the arrest of the accused from the spot is doubtful. Exhibit P2 contains the number of the Crime (51/05) registered against the accused. While dealing with a similar fact situation, this 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 Crl.A No.1855 of 2008 5 ## 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 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 (4) KLT 188 = 2020 (3) KHC 715)]” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel relied on the following circumstances to substantiate his contention that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory: - (a) The delay in the production of the properties, including the sample, has not been satisfactorily explained by the prosecution. - (b) Exhibit P1 seizure mahazar does not contain the Crl.A No.1855 of 2008 6 nature and description of the seal stated to have been affixed on the bottle containing the sample. - (c) The detecting officer has not given evidence as to the nature and description of the seal used. - (d) The property Clerk of the Court and the Police official, who delivered the sample to the laboratory, were not examined by the prosecution. 12. The accused was produced before the Court on 22.05.2005. Though the seizure was effected on 21.05.2005, the detecting officer could produce the properties, including the sample, before the Court only on 23.05.2005, the reason for which remains unexplained. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties before the Court, a Division Bench of this Court held as follows: “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 place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) Crl.A No.1855 of 2008 7 In Ravis' 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 an explanation for the delay when there is delayed production of the property. 13. 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 the sample could not be ruled out. 14. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P8 Certificate of Chemical Analysis shows that the sample reached the laboratory on 28.06.2005. It is further seen that the sample was delivered to the laboratory through Police Constable No.4808. 15. The sample remained in the custody of the property clerk of the Court, the Police official who received the sample from the Court and the Police official who delivered the same in the Crl.A No.1855 of 2008 8 laboratory. None of these witnesses were 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 it was 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 the contraband 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 a tamper-proof condition. Relying on State of Rajasthan v. Daulat Crl.A No.1855 of 2008 9 Ram [AIR 1980 SC 1314] in Sasidharan's case (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 reemphasized 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's case (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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 19. In Bhaskaran K. v. State of Kerala and another (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 Crl.A No.1855 of 2008 10 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. 20. In the instant case, the prosecution could not establish that the arrack seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. Moreover, the prosecution also failed to convincingly establish the arrest of the accused as alleged. 21. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 22. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala Crl.A No.1855 of 2008 11 [2007 (1) KHC 275]}. 23. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 24. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS