Omanakkuttan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ``` CRL.A NO. 267 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 23.01.2010 IN SC NO.685 OF 2006 OF ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA ``` ``` APPELLANT/S: ``` ``` OMANAKKUTTAN S/O.NARAYANAN,VALAYAMPARAMBIL HOUSE,THEKKUTHODE, MURI,THANNITHODE VILLAGE,PATHANAMTHITTA DISTRICT. BY ADV SRI.V.SETHUNATH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR,HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.267 of 2010 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No. 267 of 2010** --------------------------------------Dated this the 12[th] day of April 2024 ## **JUDGMENT** Aggrieved by the judgment dated 23.01.2010, passed by the Additional District & Sessions Court (Adhoc), Fast Track Court–I, Pathanamthitta in S.C.No.685/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 30.12.2004 at 05.30 p.m, the accused was found in possession of 4 litres of arrack at Elukadavu in Thannithodu in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence Crl.A.No.267 of 2010 3 punishable under Section 8(2) 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 the accused, charge was framed against him for the offence punishable under Section 8(2) 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 P8 and MOs.1 to 2 and MO.3 series. 5. After the closure of the prosecution evidence, 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. Crl.A.No.267 of 2010 4 6. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution has not succeeded in establishing that the contraband substance seized at the scene of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) Arrest of the accused is doubtful. (ii) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been used by the detecting officer. 9. The learned counsel for the accused disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P2 arrest memo to contend that Crl.A.No.267 of 2010 5 the arrest of the accused is doubtful. Ext.P2 contains the number of the crime (No.111/2004) registered against the accused. 10. 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,** Crl.A.No.267 of 2010 6 ## **Kunnamkulam Police Station and another (2020(3) KHC 715)].** ” 11. 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, a doubt arises as to the manner in which the seizure and arrest were effected. 12. The alleged seizure was effected on 30.12.2004. The detecting officer prepared Ext.P1 seizure mahazar, which does not contain the nature and description of the seal stated to have been used by the detecting officer. The specimen of the seal was not produced before the Court to establish the genuineness of the sample produced. 13. 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 Crl.A.No.267 of 2010 7 Court to satisfy the genuineness of the sample produced in the Court. 14. The resultant conclusion is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 15. 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 corelated. 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. Crl.A.No.267 of 2010 8 17. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per the interim orders of the Court shall be disbursed to him as per law. The Criminal Appeal is allowed as above. **K.BABU, JUDGE** kkj