Mohanan s/o Sukumaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **CRL.A NO. 2172 OF 2007** **AGAINST THE JUDGMENT IN SC 679/2002 OF ADDITIONAL DISTRICT AND** **SESSIONS (ADHOC) COURT-I, KOLLAM** ## **APPELLANT/ACCUSED:** MOHANAN,S/O SUKUMARAN, KUMPALATHU VEEDU, PERUMKULAM BHAGAM, THAZHUTHALA. BY ADV SRI.C.RAJENDRAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, S.I. OF POLICE, KOTTAYAM POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2172 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2172 of 2007 --------------------------------------Dated this the 1[st] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 29.09.2007, passed by the Additional District and Sessions (Adhoc) Court-I, Kollam in S.C.No.679/2002, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 03.04.2001 at 3.00 p.m, the accused was found in possession of 3 litres of illicit arrack at Thazhava, 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 55(a) and 55(i) of the Abkari Act 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 Crl.A No.2172 of 2008 3 the accused, charges were framed against him 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, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MOs I to IV. 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/accused for the aforesaid offence. 6. Heard Sri. C.Rajendran, 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 judgment of conviction and sentence on the following grounds: Crl.A No.2172 of 2008 4 - (i) The arrest of the accused as pleaded by the prosecution is doubtful. - (ii) 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 foundation of the prosecution case is that the accused was arrested along with the contraband substance on 03.04.2001 by the Sub Inspector of Police, Kottiyam. 9. The learned counsel for the accused disputed the arrest of the accused. The learned counsel relying on the presence of Crime number in Ext.P3 arrest memo, contended that the arrest of the accused from the spot is doubtful. 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 Crl.A No.2172 of 2008 5 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 relied on the following circumstances to substantiate his contention that the prosecution failed to prove that contraband seized eventually reached the Chemical Examiner's Laboratory: - (a) The delay in the production of the properties, including the sample, has not been properly explained by the prosecution. - (b) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to Crl.A No.2172 of 2008 6 have been affixed on the bottle containing the sample. - (c) Forwarding note/requisition for sending sample has not been produced and marked. 12. The properties, including the sample, were produced before the Court only on 11.04.2001 though the seizure was on 03.04.2001. The delay in the production of the properties, including the sample, has not been satisfactorily explained by the prosecution. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties before the Court, 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 Crl.A No.2172 of 2008 7 delay and that there should be 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 sample could not be ruled out. 14. Exhibit P1 seizure mahazar is the contemporaneous document prepared to evidence seizure. Exhibit P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner for verification. The property list and the requisition for sending sample have not been produced and marked. 15. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. Crl.A No.2172 of 2008 8 16. In Rajamma v. State of Kerala [2014 (1) KLT 506] , this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 17. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamperproof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 18. As the prosecution has not succeeded in establishing that the contraband seized at the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 19. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Crl.A No.2172 of 2008 9 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. 20. 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]}. 21. In the instant case, the prosecution has miserably 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. 22. 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 Crl.A No.2172 of 2008 10 appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS