Kuttan, s/o Karappan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 CRL.A NO. 1319 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 678/2007 OF ADDITIONAL SESSIONS** **COURT (ADHOC), FAST TRACK-I, THRISSUR** ## **APPELLANT:** KUTTAN, S/O. KARAPPAN, CHEMMAMPARAMBIL HOUSE, KADANGODE LAKSHAMVEEDU COLONY, KADANGODE VILLAGE, THALAPILLY TALUK. BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P ## **RESPONDENT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR EXCISE, HIGH COURT OF KERALA. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1319 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1319 of 2008 --------------------------------------Dated this the 28[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 31.05.2008, passed by the Additional Sessions Court (Adhoc), Fast Track-I, Thrissur in S.C.No.678/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 58 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 13.11.2004 at 5.15 p.m, the accused was found in possession of a can containing arrack near Hidayathul Muslim Madrassa at Kadangode desom in Thalappilly Village, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 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 Court. On the appearance of the accused, charge was framed against him for the offence punishable under Crl.A No.1319 of 2008 3 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 6 and proved Exts.P1 to P6 and MO1. 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 appellant/accused for the aforesaid offence. 6. Heard Sri. Thiyyannoor Ramakrishnan, 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: - (i) The arrest of the accused as pleaded by the Crl.A No.1319 of 2008 4 ## prosecution is doubtful. - (ii) The prosecution has failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The foundation of the prosecution case is that the accused was arrested from the place of occurrence along with the contraband substance on 13.11.2004. 9. The defence disputes the arrest of the appellant on the ground that 'arrest memo' was not prepared and produced as required. 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 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 Crl.A No.1319 of 2008 5 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' and 'arrest intimation' were not prepared at the time of arrest by the officer who arrested the accused. Therefore, the prosecution case built upon the foundation that the accused was arrested while possessing the contraband substance would fall to ground. The non-compliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. Where the prosecution has Crl.A No.1319 of 2008 6 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 highly doubtful. 12. The learned counsel for the appellant further relied on the following circumstances to contend that the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory: - (a) The specimen of the seal was not produced before the Court and forwarded to the laboratory. - (b) Exhibit P1 seizure mahazar does not contain the Crl.A No.1319 of 2008 7 nature and description of the seal stated to have been affixed on the bottle containing the sample. 13. Exhibit P1 is the seizure mahazar, the contemporaneous document prepared to evidence seizure as pleaded by the prosecution. According to the prosecution, the detecting officer had drawn sample from the bulk quantity of the arrack allegedly seized from the possession of the accused. Exhibit P1 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 specimen of the seal was not produced before the Court to ensure the genuineness of the sample produced before the Court. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verification. Forwarding note/requisition for sending sample was not produced and marked. 14. 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 specimen of the seal shall be produced in the Court so as to enable Crl.A No.1319 of 2008 8 the Court to satisfy the genuineness of the sample produced in the Court. 15. 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. 16. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamperproof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory {Vide: Baburaj v. State of Kerala [2021 (6) KLT 416]}. 17. The sample remained in the custody of the property clerk of the Court till 13.01.2005. It was forwarded to the laboratory Crl.A No.1319 of 2008 9 through an Excise guard by name P.P.Krishnakumar. He delivered the sample on 14.01.2005 in the laboratory. Neither the property clerk nor Sri.P.P.Krishnakumar was examined as witnesses. Nonexamination of these officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as it failed to rule out 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]. 18. In the instant case, the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical examiner's Laboratory, Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 19. 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. 20. It is settled that the prosecution in a case of this nature Crl.A No.1319 of 2008 10 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 [2007 (1) KHC 275]}. 21. In the instant case, the prosecution miserably failed 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. 22. 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. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS