Kamalamma d/o Vedappu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 CRL.A NO. 1643 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1451/2001 OF ADDITIONAL SESSIONS JUDGE/FAST TRACK COURT (ADHOC) NO.IV, THIRUVANANTHAPURAM. CP 72/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD** ## **APPELLANT/ACCUSED:** KAMALAMMA D/O VEDAPPU,VETTICHAMKUNNU KUZHIVILAKATHU VEEDU,, IYITHY, KOTTAKKAKOM MURI,, ARYANAD VILLAGE. BY ADV SUMAN CHAKRAVARTHY ## **RESPONDENT:** STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** ADV. RANJIT GEORGE – SR. PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1643 OF 2006 2 ## **JUDGMENT** The appellant is the sole accused in SC.No.1451/2001 on the file of the Additional Sessions Judge/Fast Track Court (Adhoc) No.IV, Thiruvananthapuram. The aforesaid case arises from Crime No.385/2000 of Aryanad Police Station. The offence alleged against the appellant is under Section 8(1) and (2) of the Kerala Abkari Act. 2. The prosecution case is that, on 19/12/2000, the Sub Inspector of Police, Aryanad got the information that the appellant was dealing in illicit arrack at the premises of her residential house at Ayithi Vettichankunu at Aryanad Village and immediately, the police party consisting of a woman police constable, reached the spot at 12.10 pm on that day. Thereupon, they could find the appellant standing there with a black plastic can having a capacity of 10 litres and a glass. On examination, it was found that the plastic can contained 9 litres of arrack, and there was a smell of arrack from the glass as well. Based on that, the appellant was arrested, and the articles were CRL.A NO. 1643 OF 2006 3 seized. After completing the investigation, a final report was submitted before the Judicial First Class Magistrate Court-I, Nedumangad where it was taken into the file as CP No.72/2001. After completing the legal formalities, the matter was committed to the Sessions Court, Thiruvananthapuram, from where the same was made over to the Additional Sessions Judge/Fast Track Court (Adhoc) No.IV, Thiruvananthapuram, and it was tried as SC No.1451/2001. 3. In support of the prosecution case, PWs 1 to 6 were examined, Exts. P1 to P8 were marked, and material objects 1 and 2 were identified. No evidence was adduced. 4. After the closure of the prosecution evidence, the accused was examined under Section 313 of Cr. P.C and the incriminating materials brought out during the trial were put to her, which she denied. 5. After evaluating the materials produced by the prosecution, the learned Sessions Judge arrived at the finding that the appellant is guilty of the offence punishable under CRL.A NO. 1643 OF 2006 4 Section 8(1) and (2) of the Abkari Act. Accordingly, she was sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs.1 lakh with a default of payment of the fine to undergo rigorous imprisonment for a further period of six months. This appeal is filed challenging the aforesaid finding of conviction and sentence. 6. Heard Sri.Suman Chakravarthy, the learned counsel appearing for the appellant, and Sri.Renjit George, the learned Government Pleader appearing for the respondent. 7. The contention put forward by the learned counsel for the appellant is mainly to the effect that the prosecution failed to show that the article seized from the possession of the appellant was subjected to chemical analysis. The learned counsel further pointed out that no arrest memo was seen produced. In such circumstances, the learned counsel contended that the appellant is entitled to be acquitted. 8. On the other hand, the learned Public Prosecutor would oppose the said contentions by pointing out that there is ample CRL.A NO. 1643 OF 2006 5 evidence in the form of the evidence of official witnesses and also the contemporaneous documents such as seizure mahazar, property list, forwarding note etc. In such circumstances, no interference is warranted, points out the learned counsel for the appellant and the Public Prosecutor. 9. The first contention that has been put forward by the learned counsel for the appellant is regarding the discrepancy in the arrest. Even though it is claimed by the prosecution that the appellant was arrested from the spot on 19/12/2000, no document indicating the same has been produced. The arrest memo is a crucial document that establishes the time, date and manner of the arrest, and it is a mandatory requirement that has to be complied with in the light of the directions issued by the Hon'ble Supreme Court in this regard. The lack of marking of the arrest memo is a lapse on the part of the prosecution, mainly because the entire prosecution case is based upon the arrest of the appellant from the relevant place and seizure effected from her possession. In such circumstances, the CRL.A NO. 1643 OF 2006 6 absence of the arrest memo would create a shadow on the prosecution case. 10. Another aspect is regarding the absence of any materials, indicating that the sample claimed to be taken from the articles seized from the possession of the appellant was subjected to the chemical analysis. Ext.P3 is the seizure mahazar, and on perusal of the same, it can be seen that it does not contain any statement indicating that the sampling was done at the time of seizure. Even though it is stated that the articles were sealed from the spot itself, the description of the seal claimed to have been affixed on the same, or the impression of the same is not seen in the mahazar. ## 11. In **Moothedath Sivadasan v. State of Kerala [2021 (2)** **KLJ 80]** , this court considered the aforesaid question specifically and after referring to various decisions rendered by this court in this regard, it was held that the absence of an impression of the seal in the seizure mahazar or the description of the same, is a crucial lacuna in the prosecution case. CRL.A NO. 1643 OF 2006 7 12. There is yet another aspect Ext.P7 is the forwarding note as per which the sample claimed to have been collected from the article seized from the possession of the appellant was forwarded for the chemical analysis. On perusal of the same, it can be seen that the same also does not contain the impression of the seal affixed on the sample. In **Vijay Pandey v. State of Uttar Pradesh [2019(10) SCALE 129],** it was held by the Hon'ble Supreme Court that the mere production of the report of the chemical analysis is not sufficient to hold the accused guilty. For the prosecution to succeed, it must be shown that the sample subjected to chemical analysis is the same sample collected from the article recovered from the accused. 13. In this case, when Ext.P7 forwarding note is taken into consideration, it is seen that the same does not contain the sample seal. In the absence of the seal on the said document, it cannot be safely concluded that the same sample drawn from the articles seized from the possession of the appellant was subjected to chemical analysis. It also indicates that the CRL.A NO. 1643 OF 2006 8 prosecution failed to establish the tamper proof condition of the sample, right from the seizure till it reached the hands of the chemical analyst. This is a very serious lacuna in the prosecution case, and the same can be a ground for acquitting the appellant. In the result, this Criminal Appeal is allowed. The finding of conviction of the appellant and sentence imposed upon her as per the judgment dated 10.08.2006 in SC No.1451/2001 passed by the Additional Sessions Judge/Fast Track Court (Adhoc) No.IV, Thiruvananthapuram is set aside. The appellant is found not guilty, and she is acquitted of all the charges. The bail bond shall stand cancelled. Sd/- **ZIYAD RAHMAN A.A. JUDGE** ska