Mohanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 ``` ``` CRL.A NO. 869 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 460/2007 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC), THRISSUR ``` ``` CP 39/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS,IRINJALAKUDA APPELLANT/ACCUSED: ``` ``` MOHANAN, S/O VELAYUDHAN, PANAKKOOTTATHIL, KUZHIKKATTUSSERY, THAZHEKKAD, MUKUNDAPURAM. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU SMT.P.MAYA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 869 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** ========================= ## **Criminal Appeal No.869 of 2008** ========================= Dated this the 18[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 29.04.2008, passed by the Additional Sessions Court (Adhoc), Fast Track Court-I, Thrissur in S.C.No.460/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 19.06.2006 at 5.30 p.m., the appellant/accused was found in possession of 8 bottles each containing 750 ml of illicit liquor on the Kuzhikkattussery-Kombathukadvu road 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 ``` CRL.A NO. 869 OF 2008 ``` ``` 3 ``` 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, charge was framed against him for the offence punishable under Section 58 of the Abkari Act. 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 to 5 and proved Exts.P1 to P6 and MOs 1 to 9. 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. On the side of defence DWs 1 to 3 were examined and Exts. D1 to D11 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant ``` CRL.A NO. 869 OF 2008 ``` ``` 4 ``` for the aforesaid offence. 6. Heard Sri. P, Vijaya Bhanu, 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; - (i) The arrest of the accused as alleged by the prosecution is found to be doubtful. - (ii) The prosecution failed to show that the contraband substance allegedly seized from the place of occurrence, eventually reached the Chemical Examiner’s Laboratory. 8. The case of the prosecution is that the accused was arrested along with the contraband substances on 19.06.2006 from the place of occurrence. The defence challenged the arrest of the accused on the ground that the arrest memo was not ``` CRL.A NO. 869 OF 2008 ``` ``` 5 ``` produced and marked. 9. 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 he has been arrested and is being detained at the particular place unless the attesting witness of the memo of ``` CRL.A NO. 869 OF 2008 ``` ``` 6 ``` 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 of the accused. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The non-compliance 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 prosecution falls to the ground. 11. This Court in **Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308]** ``` CRL.A NO. 869 OF 2008 ``` ``` 7 ``` had considered a similar fact situation. This Court held that non-compliance 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. The learned counsel for the appellant contented that the prosecution failed to establish that the specimen of the seal stated to have been affixed on the bottles containing the sample was forwarded to the Chemical Examiner's Laboratory for verification. 13. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner to ascertain the genuineness of the sample produced for examination. 14. In **Rajamma v. State of Kerala [2014 (1) KLT 506]** , this Court held that if the specimen of the ``` CRL.A NO. 869 OF 2008 ``` ``` 8 ``` seal affixed on the bottle containing 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. 15. 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 tamper-proof 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. 16. The sample remaind in the custody of the property clerk of the Court and an Excise Guard by name Sri. P.K. Sunil, who delivered the sample to the laboratory. Those witnesses were not examined by the ``` CRL.A NO. 869 OF 2008 ``` ``` 9 ``` prosecution to rule out the possibility of the sample being changed or tampered with. The non-examination of those witnesses is fatal to the prosecution as it failed to establish the tamper proof despatch of the sample to the laboratory. Omission on the part of the prosecution in the examination of those witnesses leads to the conclusion that it failed to rule out the possibility of the sample being changed or tampered with. Relying on the decision of the Apex Court in **State of Rajastan v. Daulat Ram (AIR 1980 SC 1314)** this Court in **Sasidharan v. State of Kerala ( 2007 (1) KLT 720)** held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. 17. In the present case, the prosecution failed to establish the arrest and seizure of the contraband substance from the possession of the accused and also that the liquor allegedly seized from the place of ``` CRL.A NO. 869 OF 2008 ``` ``` 10 ``` occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 18. 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. 19. 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]}. 20. 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 ``` CRL.A NO. 869 OF 2008 ``` ``` 11 ``` doubt arising from the absence of link evidence as discussed above. 21. 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 acquitted of the offence alleged. He is set at liberty. Any amount deposited by the appellant/accused as per the directions of this Court shall be disbursed to him. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU