KANIYARATHIL PURUSHU PERINTATHOOR AMSOM, ANIYARAM v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944** **CRL.A NO. 2435 OF 2008** **AGAINST THEJUDGMENT DATED 20.9.2008 IN SC 342/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY** ## **APPELLANT/ACCUSED:** KANIYARATHIL PURUSHU PERINTATHOOR AMSOM, ANIYARAM. BY ADVS. SRI.N.NAGARESH SRI.SHAJI THOMAS PORKKATTIL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2435 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2435 of 2008** --------------------------------------Dated this the 7[th] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 20.9.2008, passed by the Additional Sessions Court (Adhoc -III), Thalassery in S.C.No.342/2004, the accused has preferred this appeal. The appellant/accused was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 20.02.2002 at 18.10 hours., the accused was found in possession of 40 bottles, each containing 180 ml. of Indian made foreign liquor, at Perigalam Panchayath in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Sections 55(a) of the Abkari Act and Rule 9 Crl.A.No.2435 of 2008 3 of Foreign Liquor Rules, before the jurisdictional Magistrate. The case was committed to 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 58 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 3 and proved Exts.P1 to P8, MO 1 series and MO2. 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. Crl.A.No.2435 of 2008 4 6. Heard Sri. Shaji Thomas, 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/accused challenged the judgment of conviction and sentence on the following grounds. - (a) The arrest of the appellant/accused is doubtful. - (b) The prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relying on **Santhosh v. State of Kerala** [2021 (5) KHC 214] contended that the arrest of the accused as per the prosecution case is doubtful. The learned counsel placed on relience on the presence of the crime number in Ext.P1 arrest memo. The prosecution case is that the appellant/accused was arrested on 20.2.2002 along with the contraband substance. The arrest and seizure were effected by Sub Inspector of Police, Chokli. He was examined as PW1. According to PW1 the accused was Crl.A.No.2435 of 2008 5 arrested along with the contraband substance from the scene of occurrence. 9. Ext.P1 is the arrest memo prepared by the detecting offficer. Ext.P1 contains the number of crime registered by the prosecution. 10. While dealing with the similar fact situation in **Santhosh v. State of Kerala** [2021 (5) KHC 214], 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 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)].** ” Crl.A.No.2435 of 2008 6 11. The prosecution has not offered any explanation regarding the presence of the crime number in Ext.P1 arrest memo. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P1 arrest memo, a doubt arises as to the manner in which arrest and seizure were effected. 12. Ext.P3 seizure mahazar is the contemporaneous document to evidence seizure. Ext.P3 mahazar does not contain the nature and description of the seal stated to have been affixed on bottle containing the sample. PW1 has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court to ensure the genuineness of the sample. There is also no evidence to show that the seal was forwarded to the Chemical Examiner for verification. 13. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar Crl.A.No.2435 of 2008 7 and the 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. 14. In **Rajamma v. State of Kerala (2014 (1) KLT 506)** , this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 15. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The sample remained with the property clerk of the Court and the police official who delivered the same in the laboratory. Those officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as the prosecution failed to rule out Crl.A.No.2435 of 2008 8 the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314).** 16. As the prosecution has miserably failed to establish that the contraband substance allegedly seized from the scene of occurrence was subjected to analysis in the Chemical Examiners Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 17. The resultant conclusion is that the prosecution failed to establish the link connecting the accused with 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. 18. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. Crl.A.No.2435 of 2008 9 19. Any amount deposited by the accused as per the interim directions of this Court shall be disposed with forthwith. The appeal is allowed as above. Sd/- **K.BABU JUDGE** AP