Manoj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** ## **CRL.A NO. 657 OF 2008** **AGAINST THE JUDGMENT IN SC 383/2006 OF IV[th] ADDITIONAL SESSIONS** **COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** MANOJ, S/O. CHELLAPPAN, MATTATHIL HOUSE, ANAKKARA BHAGAM, ANAKKARA VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA SRI.M.V.RAJENDRAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.657 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.657 of 2008 --------------------------------------Dated this the 30[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 18.02.2008, passed by the IV[th] Additional Sessions Judge, (Adhoc)-II, Thodupuzha in S.C.No.383/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 12.07.2005 the accused was found in possession of 9.5 litres of illicit arrack at his residence at Anakkara within the territorial limit of Vandanmedu Police station. 3. After completing the investigation, final report was submitted against the appellant for the offences punishable under Sections 55(a), 55(i) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Nedumkandam. The case was committed to the Sessions Court, Thodupuzha from where it was 3 Crl.A No.657 of 2008 made over to the Trial Court. On the appearance of the accused, charges were framed against him for the offences punishable under Sections 55(i) and 8(2) 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 P9 and MOs 1 to 3. 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 for the offence under Sec.8(2) of the Abkari Act.. 6. Heard Sri. C.M.Tomy, 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 Crl.A No.657 of 2008 4 judgment of conviction and sentence on the following grounds: - (i) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. - (ii) The prosecution also failed to prove the alleged arrest of the accused from the place of occurrence. 8. The case of the prosecution rests on the arrest of the accused from his residence at Anakkara. 9. The learned counsel for the accused disputed the arrest of the accused. The learned counsel relied on the presence of crime number in Ext.P3 arrest memo to contend that the arrest of the accused at the spot is doubtful. Exhibit P3 contains the number of crime (96/2005) registered against the accused. While dealing with a similar fact situation this Court in Santhosh v. State of Kerala [2021 ## (5) KHC 214] 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 Crl.A No.657 of 2008 5 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)]” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P3 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel for the appellant further contended that the prosecution failed to establish the genuineness of the properties, including the sample, produced before the Court and forwarded to the Chemical Examiner's laboratory. The sample of the illicit arrack allegedly recovered from the possession of the accused was forwarded to the Chemical Examiner's laboratory as per letter dated 13.07.2005. The sample reached the laboratory only on 15.07.2005. The sample remained in the custody of the property Crl.A No.657 of 2008 6 clerk of the Court, the police official who received the same from the Court and the Police official who delivered the same to the Chemical Examiner's laboratory. None of these officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The inevitable consequence of this omission is that the prosecution has not succeeded in establishing that the sample was forwarded to the laboratory in a tamper-proof condition. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 12. As mentioned above, the sample obtained on 13.07.2005 by the Police official concerned from the Court reached the laboratory only on 15.07.2005. The prosecution has not offered any explanation as to the custody of the article during the interregnum. 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 Crl.A No.657 of 2008 7 have been seized from the possession of the accused. This benefit must be given to the accused.” 13. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. Since the prosecution failed to prove that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory, Ext.P9, the certificate of chemical analysis, has no evidentiary value. 14. 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. 15. 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 Crl.A No.657 of 2008 8 ## v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 16. 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. 17. 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 charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS