Lukose S/o Kochukunju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** **CRL.A NO. 2151 OF 2007** **AGAINST THE JUDGMENT IN SC 98/2002 OF ADDITIONAL SESSIONS COURT** **(ABKARI CASES), KOTTARAKKARA** ## **APPELLANT/1ST ACCUSED:** LUKKOSE,S/O. KOCHUKUNJU, LINCEE BHAVANAIL, CHERUVAKKAL MURI, ELAMADU VILLAGE. BY ADVS. LUKKOSE(PARTY) SYAM J SAM J ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2151 of 2007 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.2151 of 2007 --------------------------------------- Dated this the 16[th] day of September, 2022 ## JUDGMENT Aggrieved by the judgment dated 11.10.2007, passed by the Additional Sessions Court (Abkari cases), Kottarakkara in S.C.No.98/2002, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 10.06.2000 at 5.30 p.m, the appellant/accused No.1 was found in possession of 3 litres of arrack and accused No.2 in possession of 5 litres of arrack for the purpose of sale at Kottarkkunnu, Cheruvackal. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from Crl.A No.2151 of 2007 3 where it was made over to the Trial Court. On the appearance of the accused, charges were framed against them for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 and MOs 1 to 3. 5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of the defence, DWs 1 and 2 were examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused No.1 for the aforesaid offence. Accused No.2 was acquitted. ## 6. Heard. 7. The learned counsel for the appellant challenged the Crl.A No.2151 of 2007 4 judgment of conviction and sentence on the following grounds: - (i) The arrest of the appellant/accused No.1 is doubtful. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory. 8. The arrest of the accused is challenged on the ground that the arrest memo as required has not been produced. The case of the prosecution is that the accused was arrested from the spot along with the contraband substance. But the arrest memo has not been produced in this case. 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 Crl.A No.2151 of 2007 5 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 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 Crl.A No.2151 of 2007 6 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 failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to 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 recovery was effected on 10.06.2000. The properties, including the sample, were produced before the Court on 06.07.2000. The prosecution has not offered any explanation for the delay in the production of the properties including the sample. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in Crl.A No.2151 of 2007 7 the production of properties, 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) 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 samples could not be ruled out. 14. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory. The seizure mahazar does not contain the Crl.A No.2151 of 2007 8 nature and description of the seal stated to have been affixed on the bottle containing the sample. The sample was forwarded to the laboratory as per letter dated 05.08.2000 of the Judicial First Class Majistrate-II, Kottarakkara. Exhibit P6, the Certificate of Chemical Analysis, shows that the sample reached the laboratory only on 06.09.2000. The custody of the sample during the interregnum between 05.08.2000 and 06.09.2000 has not been explained by the prosecution. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 15. The property clerk of the Court who had custody of the sample till 05.08.2000 and the Police Constable, who delivered the sample to the laboratory, were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with during its transit from the Court to the laboratory. This view is Crl.A No.2151 of 2007 9 fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 16. As the prosecution has not established that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 17. 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. 18. 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 [2007 (1) KHC 275]}. 19. In the instant case, the prosecution was unable to Crl.A No.2151 of 2007 10 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. 20. 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 No.1 is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS