Mathew, S/o Joseph and Vikraman S/o GOPALA PILLAI v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 CRL.A NO. 766 OF 2007** **AGAINST THE JUDGMENT, CONVICTION AND SENTENCE DATED 23.04.2007 IN SC 580/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,** ## **THODUPUZHA** **CP 44/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI APPELLANTS/ACCUSED:** **1 MATHEW, S/O.JOSEPH, VELLAPLACKAL HOUSE, KULAMAVU KARA,IDUKKI VILLAGE. 2 VIKRAMAN S/O.GOPALA PILLAI, KALLUKUTTIL HOUSE,KULAMAVU KARA, IDUKKI VILLAGE.** **BY ADVS. C.M.TOMY MATHEW SKARIA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV PUBLIC PROSECUTOR** ## **REKHA – SENIOR GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** Crl.A No.766 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.766 of 2007** --------------------------------------- Dated this the 1[st] day of December 2022 ## **JUDGMENT** Aggrieved by the judgment dated 23.04.2007, passed by the Additional Sessions Court (Adhoc)-II, Thodupuzha in S.C.No.580/2005, the two accused have preferred this appeal. The appellants/accused were convicted under Section 55 (i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 14.01.2003 at 11.30 p.m., accused No.2 was found handing over 8 bottles, each containing 375 ml of Indian made foreign liquor, to accused No.1 at Kulamavu town in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellants/accused for the offences punishable under Sections 55(a) and 55 (i) of the Abkari Act before the jurisdictional Magistrate. The case was committed Crl.A No.766 of 2007 3 to the Sessions Court, from 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 MO 1. 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 defence Exts. D1 to D23 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants for the aforesaid offence. 6. Heard Sri. C.M Tomy, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.766 of 2007 4 7. The learned counsel for the appellants/accused challenged the judgment of conviction and sentence on the following grounds. 1. The arrest of accused No.1 is doubtful. 2. The prosecution failed to establish the identity of accused No.2. 3. The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The alleged seizure was effected on 14.1.2003. The arrest and seizure were effected by PW3, Sub Inspector of Police, Kulamavu. According to the prosecution at the scene of the occurrence, the police team found a person holding a plastic bag. On seeing the police party accused No.2 handed over the bag to another man standing near him and left the scene. He was not arrested. The person who received the bag from the man who originally held the bag was arrested. The police team seized the bag wherein they found eight bottles of Indian-made foreign liquor. Accused No.1 was the person who Crl.A No.766 of 2007 5 was arrested from the scene of occurrence. The learned counsel for the appellant challenged the genuineness of the arrest of accused No.1 on the ground that Ext.P4, arrest memo contains the crime number. The learned counsel contended that the presence of the crime number in the Ext.P4, arrest memo makes the arrest doubtful. 9. 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 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)].** ” Crl.A No.766 of 2007 6 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P4 arrest memo, a doubt arises as to the manner in which arrest and seizure were effected. 11. The incident was at 11 p.m. According to the prosecution, the person who had carried a bag containing the contraband escaped from the scene on seeing the police party. They have no case that they had any previous acquaintance with the person who ran away from the scene. According to the prosecution it was accused No.2 who left the scene on seeing the police party. No test identification parade was conducted. Accused No.2 could not be arrested. The official witnesses identified accused No.2 after a long lapse of four years in 2007. Going by the evidence, the witnesses who identified the accused had only a fleeting glimpse of the person who ran away from the scene. 12. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of Crl.A No.766 of 2007 7 observation, if the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court **[vide: Kannan and others v.State of Kerala (AIR 1979 SC 1127)], Jameel v.State of Maharashtra [AIR 2007 SC 971)], Raja v.State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC)1382], Mohd.Abdul Hafeez v. State of AP[AIR 1983 (SC) 367].** So on this ground alone the prosecution must fail. 13. The further challenge of the defence is that the prosecution failed to establish that the contraband substance seized from the place of occurrence was eventually analysed in the Chemical Examiner's Laboratory. According to the prosecution, the properties including the sample were produced before the Magistrate's Court at Kattapana on 15.1.2003. The properties including the sample were returned for presentation before the jurisdictional Court. The sample was produced before the Jurisdictional Court on 17.1.2003. It was received by the Junior Superintendent of the Court. The Crl.A No.766 of 2007 8 prosecution has not given evidence as to the name of the police officials who handled the sample during its transit from the Court at Kattapana to the Magistrate Court at Idukki, i.e, Jurisdictional Court. The sample remained in the custody of the Junior Superintendent of the Jurisdictional Court. The sample was forwarded to the laboratory only on 20.1.2003. It was delivered by a police constable No.2204. 14. The police officials who handled the sample during its transit from the Magistrate's Court, Kattapana to the Jurisdictional Court, the Junior Superintendent of the Jurisdictional Court, the property clerk, and the police official who delivered the sample in the laboratory were not examined by the prosecution. Non-examination of those officials is fatal to the prosecution as the prosecution failed to rule out the possibility of the sample being changed or tampered with. Relying on **State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314]** this Court in **Sasidharan v. State of Kerala [2007 (1) KHC 275]** held that in cases where sample changed several hands the prosecution can succeed only if it is established that it ultimately reached the hands of the Crl.A No.766 of 2007 9 Chemical Examiner in a tamperproof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. In the instant case, due to the non-examination of the above-referred officials who handled the sample, the prosecution failed to establish that the sample ultimately reached the hands of the Chemical Examiner in a tamper-proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. 15. As the prosecution failed to show that the contraband substance seized from the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P1 Certificate of Chemical Analysis has no evidentiary value. 16. The resultant conclusion is that the prosecution 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. Crl.A No.766 of 2007 10 17. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/- **K.BABU** **JUDGE** AP