MANOHARAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 CRL.A NO. 1725 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 470/2004 OF SUB ``` ``` COURT,NEYYATTINKARA CP 172/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ## **`I,NEYYATINKARA`** ## **`APPELLANT/S:`** ``` MANOHARAN POTTAVILA VEEDU, MANGALATHOKONAM,, VENGANOOR DESOM, VENGANOOR VILLAGE,, THIRUVANANTHAPURAM TALUK. ``` ``` BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.R.V.SREEJITH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE, GENERAL, HIGH COURT OF KERALA, HIGH COURT, BUILDINGS, ERNAKULAM, (EXCISE INSPECTOR,, EXCISE RANGE OFFICE, NEYYATTINKARA). ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1725 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 22.08.2007, passed by the Assistant Sessions Court, Neyyattinkara in Sessions Case No.470/2004, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 26.10.1999 at 6.30 p.m., the accused was found in possession of 10 litres of arrack at Irumbil in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 58 of the Abkari Act ``` CRL.A NO. 1725 OF 2007 ``` ..3.. 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 charges were framed against him for the offences punishable under Sections 8(2) and 58 of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he 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 P5 and MO1. 5. After the closure of the evidence on behalf of the prosecution, 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 to adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both ``` CRL.A NO. 1725 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.Pirappancode V.S. Sudheer, 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 challenges the judgment of conviction and sentence on the following grounds: - (1) The arrest of the accused as alleged by the prosecution is doubtful. - (2) The act of drawing sample by the property Clerk of the Court from the bulk quantity of the arrack produced has no sanction of law. 8. The prosecution case is that the accused was arrested from the place of occurrence on 26.10.1999 along with the contraband substance by the Detecting ``` CRL.A NO. 1725 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** Officer (PW2). 9. The defence challenges the arrest of the accused as alleged. 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 as practicable, that ``` CRL.A NO. 1725 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 ``` CRL.A NO. 1725 OF 2007 ``` ..7.. 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 noncompliance 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. Admittedly, no sample was drawn at the scene of occurrence by the Detecting Officer. He produced MO1 can before the Court. PW4, the Property Clerk of the Court, stated that she had drawn sample from the arrack produced before the Court. The legality of drawing sample by the Property Clerk as per the instructions of the Magistrate concerned was considered ``` CRL.A NO. 1725 OF 2007 ``` ..8.. ## by this Court in **Baburaj v. State of Kerala** [2021(6) KLT 416]. In **Baburaj** (Supra) this Court held thus:- “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of fnal report laid by the investigating oficer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala** [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala** [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority ``` CRL.A NO. 1725 OF 2007 ``` ..9.. to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting oficer.” 13. In **Baburaj** (Supra), this Court further held that as the procedure adopted in drawing the sample from the contraband substance is not a procedure established by law, no evidentiary value can be given to the Chemical Analysis report obtained based on the sample so drawn. Therefore, Ext.P3 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband ``` CRL.A NO. 1725 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** substance. 14. 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 found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offences alleged; (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj