Lohitakshan v. State of Kerala (Criminal Appeal No. 2583 of 2008)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 ``` ``` CRL.A NO. 2583 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 938/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR ``` ## **`APPELLANT/S:`** ``` LOHITAKSHAN, S/O SUBRAN, PALLATHERY ``` ``` HOUSE, CHEMBANKUNU, KUTTICHIRA. ``` ``` BY ADVS. SHEEJO CHACKO SRI.A.G.UNNIKRISHNAN M.N.MANOJ ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REP.BY PUBLICPROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` 2SUB INSPECTOR OF POLICE VELLIKULANGARA. ``` ## **`BY ADV PUBLIC PROSECUTOR`** ## **`OTHER PRESENT:`** ## **`SR PP SMT.REKHA.S`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2583 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** ========================= **Criminal Appeal No.2583 of 2008** ========================= Dated this the 28[th] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 04.10.2008, passed by the Additional Sessions Judge, (Adhoc) Fast Track Court-I, Thrissur in S.C.No.938/2007, the accused has preferred this appeal. The appellant/accused 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 20.06.2005 at about 5.30 p.m., the accused was found in possession of a can containing one litre of arrack, four 120 ml bottles containing arrack and another 10 litre can containing full of arrack while he was near a quarry at Chembankunnu, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report ``` CRL.A NO. 2583 OF 2008 ``` ``` 3 ``` was submitted against the accused 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 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 5 and proved Exts.P1 to P7 and MOs 1 to 4. 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 defense and adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence under Section ``` CRL.A NO. 2583 OF 2008 ``` ``` 4 ``` 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. Sheejo Chacko, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondents. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds; - (i) The arrest of the accused and seizure of the contraband substance as pleaded by - the prosecution are found to be doubtful. - (ii) The prosecution could not succeed in proving that the contraband allegedly seized from the place of occurrence was forwarded to the Chemical Examiner's Laboratory. 8. PW5, Sub Inspector of Police, Vellikulangara Police Station detected the offence. According to PW5, the accused was arrested on 20.06.2005 at about 5.30 ``` CRL.A NO. 2583 OF 2008 ``` ``` 5 ``` p.m., from a location near a quarry at Chembankunnu. The defense 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 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 ``` CRL.A NO. 2583 OF 2008 ``` ``` 6 ``` 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 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** ``` CRL.A NO. 2583 OF 2008 ``` ``` 7 ``` ## **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. 12. The learned counsel for the appellant contented that the prosecution has not proved that the contraband allegedly seized from the place of occurrence was subjected to examination in the Chemical Examiner's Laboratory. The learned counsel for the appellant contended that there is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner to ascertain the genuineness of the sample produced for examination. Ext.P5 forwarding note does not contain the specimen of the seal used by ``` CRL.A NO. 2583 OF 2008 ``` ``` 8 ``` the Detecting Officer. In the absence of any evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verification, the Certificate of Chemical Analysis prepared at the Chemical Examiner's Laboratory lacks credibility as the examiner had lost the opportunity to verify that the very same sample drawn from the scene of occurrence was eventually subjected to analysis in the laboratory. 13. The sample remained in the custody of the property clerk of the Court till 02.02.2006, after the same was produced before the Court on 21.06.2005. The bottles containing the sample were delivered by the Police Constable No.3805 in the laboratory. None of these officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 14. 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 ``` CRL.A NO. 2583 OF 2008 ``` ``` 9 ``` place of occurrence was the sample tested in the Chemical Examiner's laboratory. 15. 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 tamperproof 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. 16. 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 Rajastan v. Daulat Ram [AIR 1980 SC 1314]** in **Sasidharan** (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various ``` CRL.A NO. 2583 OF 2008 ``` ``` 10 ``` 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 re-emphasized 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** (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** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . 17. 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 ``` CRL.A NO. 2583 OF 2008 ``` ``` 11 ``` 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. 18. In the absence of any convincing evidence regarding the genuineness of the sample examined in the Chemical Examiner's Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentory value. 19. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 02.02.2006, it was subjected to analysis only on 09.02.2007. 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 ``` CRL.A NO. 2583 OF 2008 ``` ``` 12 ``` 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.” 20. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 21. 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. 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. The appellant/accused is, therefore, not guilty of the offence alleged. He is acquitted of the offence ``` CRL.A NO. 2583 OF 2008 ``` ``` 13 ``` alleged. He is set at liberty. Any amount deposited by the accused, as per the directions of this Court, shall be disbursed to the appellant. The appeal is allowed as above. **Sd/K.BABU, JUDGE** LU