M.B. Binu @ Joseph v. State of Kerala

Crl.A.No.2437 of 2008 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA,** **1944** **CRL.A NO. 2437 OF 2008** **AGAINST THE JUDGMENT DATED 10.09.2008 IN SC 289/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY APPELLANT/ACCUSED:** **M.B.BINU @ JOSEPH S/O.BABY, AGED 34 YEARS, MELEDATHU VEEDU, PERAVOOR AMSOM, PERUMPUNNA.** **BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **SHO PANOOR POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.REKHA S. SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2437 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2437 of 2008** --------------------------------------- Dated this the 7[th] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 10.09.2008, passed by the Additional Sessions Court (Adhoc -II), Thalassery in S.C.No.289/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act read with Rule 9 of Foreign Liquor Rules, 1953 and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.03.2005 at about 7.45 p.m., the accused was found in possession of 20 bottles of Indian made foreign liquor each containing 375 ml at Makkuni in Pannyannur amsom in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the jurisdictional Crl.A.No.2437 of 2008 3 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 55(a) of the Abkari Act read with Rule 9 of Foreign Liquor Rules, 1953. 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 & 6 and proved Exts.P1 to P9. 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 aforesaid offence. 6. Heard Sri. P.P Ramachandran, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A.No.2437 of 2008 4 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds. - (a) The arrest of the appellant/accused by the prosecution is doubtful. - (b) The prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The alleged seizure and arrest were effected on 25.03.2005 by Sub Inspector of Police, Panoor (PW1). According to PW1 the accused was arrested along with the contraband substance from the scene of occurrence. Ext.P2 is the arrest memo produced to substantiate the case of the prosecution that the accused was arrested. Ext.P2 contains the crime number registered against the accused. The learned counsel for the appellant relying on **Santhosh v. State of Kerala** [2021 (5) KHC 214] contended that the presence of a crime number in Ext.P2 arrest memo makes the arrest doubtful. Crl.A.No.2437 of 2008 5 ## 9. In **Santhosh v. State of Kerala** [2021 (5) KHC 214], ## this Court 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)].** ” 10. The prosecution has not offered any explanation as to the presence of the crime number in Ext.P2 arrest memo. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, doubt arises as to the manner in which arrest and seizure were effected. Crl.A.No.2437 of 2008 6 11. The learned counsel for the accused further relied on the following circumstances to contend that the prosecution failed to establish that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. - a) Ext.P1 seizure mahazar, a contemporaneous document prepared to evidence seizure and drawing of the sample does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - b) Though the seizure was allegedly effected on 25.03.2005, the properties including the sample were produced before the Court only on 05.04.2005. 12. Ext.P5 list of properties would show that the properties including the samples were produced before the Court only on 05.04.2005. The delay in the production of properties including the sample before the Court has not been satisfactorily explained by the prosecution. Crl.A.No.2437 of 2008 7 ## 13. On the question of delay in the production of properties, a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KHC 121]** held thus: “8. We, therefore, answer the reference as follows: 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) 14. In **Ravi's 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. 15. 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 Crl.A.No.2437 of 2008 8 conclusion that tampering with the sample could not be ruled out. 16. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Examination would show that the sample was forwarded to the laboratory as per the letter dated 18.03.2005 of the Additional Chief Judicial Magistrate, Thalassery. The alleged seizure was done only on 25.03.2005. The probable conclusion is that the sample forwarded to the laboratory and subjected to analysis therein would be that of another case. It is evident from Ext.P8 that the sample subjected to the analysis in the laboratory had been forwarded even before the alleged seizure. 17. As the prosecution has miserably failed to establish that the contraband substance allegedly seized from the scene of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. Crl.A.No.2437 of 2008 9 18. The resultant conclusion is that the prosecution failed to establish the link connecting the accused with 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. 19. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ## **Sd/-** **K.BABU JUDGE** AP