P. Murukan, Manikandan, Pandian and Satheesh Kumar v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 CRL.REV.PET NO. 2440 OF 2012 ``` ``` AGAINST THE JUDGMENT IN SC 315/2008 DATED 09.03.2011 DISPOSED OF BY THE ASSISTANT SESSIONS COURT, KATTAPPANA, AND CONFIRMED IN CRL.A 104/2011 DATED 31.07.2012 BY THE III ADDITIONAL DISTRICT & SESSIONS JUDGE ADHOC-I), THODUPUZHA ``` ## _`REVISION PETITIONER/APPELLANTS/ACCUSED:`_ ``` 1P.MURUKAN AGED 49 YEARS S/O. PONNAYYAN, PARAYIL VEEDU, UP VIII/915, PARATHODU VILLAGE. 2MANIKANDAN AGED 27 YEARS S/O. MURUKAN, UP VIII/853, PARATHODU VILLAGE. 3PANDIAN AGED 56 YEARS S/O. MADANAVENDRAN, UP X/II PARATHODU VILLAGE. 4SATHEESH KUMAR AGED 31 YEARS S/O. SUNDARAN UP X/223, PARATHODU VILLAGE. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN ``` ## _`RESPONDENT/COMPLAINT/STATE:`_ ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## _`OTHER PRESENT:`_ ``` SRI. RENJIT GEORGE-SR.P.P. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 2440 of 2012 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl. Revision Petition No. 2440 of 2012 **========================** ## _**O R D E R**_ ## **Dated this the 22[nd] day of November, 2023** This revision is at the instance of accused Nos. 1 to 4 in S.C. No.315 of 2008 on the file of Assistant Sessions Judge, Kattappana, assailing the judgment in Crl. Appeal No.104 of 2011 on the file of III Additional District & Sessions Judge (Adhoc-I), Thodupuzha, which upheld their conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 16.11.2007 at 8.30 p.m., the revision petitioners (A1 to A4) were found transporting 180 litres of arrack in six plastic cans in a Maruti Omni van bearing Registration No. TN-09-C-6832. 3. PW4, the Circle Inspector of Police, Nedumkandam and party, intercepted their vehicle and found 180 litres of arrack in six plastic cans, and two gas cylinders inside the van. The ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** accused persons were arrested then and there and the contraband was seized along with the vehicle. On further enquiry, they realised that the arrack was manufactured in the house of the 1[st] revision petitioner (A1) at Mavadikara, Parathodu village. So search was conducted in the house of the 1[st] accused, and utensils and implements for manufacturing arrack were seized from that house. So they were charged under Sections 8(1), 8(2), 55(a) and 55(g) of the Abkari Act. 4. On appearance of the revision petitioners (A1 to A4) before the trial court, charge was framed under Sections 8(1), 8(2), 55(a) and 55(g) of the Abkari Act, to which, they pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P25, and identified MO1 to MO4, to prove its case. 5. On closure of the prosecution evidence, the revision petitioners (A1 to A4) were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought on record. DWs 1 and 2 were examined, and Exts. D1 to D4 were marked from the side of defence. ``` Crl.R.P. No. 2440 of 2012 ``` ``` ..4.. ``` 6. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court found the revision petitioners (A1 to A4) guilty under Sections 8(1) and 8(2) of the Abkari Act, and they were convicted and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1 lakh, by each, and in default of payment of fine, each accused had to undergo simple imprisonment for a further period of three months. Revision petitioners (A1 to A4) were found not guilty under Sections 55(a) and 55(g) of the Abkari Act, and they were acquitted, thereunder. 7. Against the conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act, the revision petitioners (A1 to A4) preferred Crl. Appeal No.104 of 2011 before the III Additional District and Sessions Judge (Adhoc-I), Thodupuzha. The appellate court, on re-appreciating the facts and evidence, found nothing to interfere with the conviction and sentence imposed by the trial court, and hence, the appeal was dismissed, against which they have preferred this revision petition. 8. Now this Court is called upon to verify the legality, ``` Crl.R.P. No. 2440 of 2012 ``` ``` ..5.. ``` propriety and correctness of the concurrent judgments of conviction and sentence by the courts below. 9. Heard learned counsel for the revision petitioners and learned Public Prosecutor. 10. Learned counsel for the revision petitioners would submit that, on 16.11.2007 at 8.30 p.m., the revision petitioners were not arrested by PW4 and party, and nothing was recovered from their possession. In order to support that contention, he drew attention of this Court to Exts.P10 to P13 arrest memo of the revision petitioners, which will show the crime number also, as 360/2007. According to PW4 after arresting the revision petitioners, at the place of occurrence, arrest memo was prepared then and there, and after completing all the legal formalities, such as sampling, labelling, etc, the revision petitioners along with the articles seized, were produced before the police station and, then only, the crime was registered. If that be so, the crime number ought not have been shown in the arrest memo, as the crime was registered at a later point of time. So, learned counsel for the revision petitioners would argue that, presence of the crime ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** number in the arrest memo, is sufficient to substantiate his case, that revision petitioners were not arrested on 16.11.2007 at 8.30 p.m., as alleged by the prosecution. Since the arrest memo shows the crime number, it is a valid ground to doubt the genuineness of the arrest said to have been made by PW4, at the scene of occurrence itself. 11. In _**Rafeeque v. Sub inspector of Police & Anr**_ [2020 (3) KLJ 711], this Court held that, presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. When it is alleged by the prosecution that the seizure was effected and the accused was ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution. It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers. 12. DWs 1 and 2 were examined from the side of the revision petitioners, disputing the arrest of the 4[th] revision petitioner on 16.11.2007. DW1 claimed to be the conductor in St.Maries bus plying in Kattappana-Rajakumari route and, according to him, the 4[th] revision petitioner was the driver of that bus. His testimony is to the effect that the 4[th] revision petitioner was along with him till 8.45 p.m., on 16.11.2007 till the bus completed its service at Nedumkandam. On the next day morning, the 4[th] revision petitioner did not attend work, and DW1 came to know that he was arrested by police. The prosecution case is that, the revision petitioners, including the 4[th] revision petitioner were arrested on 16.11.2007 at 8.30 p.m. DW1 says ``` Crl.R.P. No. 2440 of 2012 ``` ``` ..8.. ``` that, the 4[th] revision petitioner was with him, driving the bus till 8.45 p.m., on 16.11.2007, and so, the case of the prosecution that the 4[th] revision petitioner was arrested at 8.30 p.m., on 16.11.2007, is not correct. DW2 deposed that, for releasing the vehicle of the 4[th] revision petitioner, he went along with him to the police station, and only thereafter, police arrested the 4[th] revision petitioner. 13. Now, let us have a look at the testimony of the independent witnesses examined by the prosecution. PWs 1 and 5 are the independent attesters to Ext.P1 seizure mahazar. Both of them deposed that, they signed the mahazar, at the police station on 17.11.2007, morning. Both of them went to the police station together, as they were asked by police to be present there. They were declared hostile as they denied to have seen, seizure of the contraband by PW4 and police party, from the possession of the revision petitioners (A1 to A4) on 16.11.2007 at 8.30 p.m. PW5, Anand is the witness in Exts.P10 to P13 arrest memo, prepared by PW4. His testimony is to the effect that, he reached the police station on 17.11.2007, and put his signature in some ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** papers, as directed by the police. The testimony of PW5 that, he signed the papers at the police station on 17.11.2007, will substantiate the case of the revision petitioners that, the arrest memo was prepared by PW4, after registration of the crime and that is why, crime number also happened to be noted in the arrest memo. 14. The testimony of PWs 1 and 5, coupled with the testimony of DWs 1 and 2 would suggest that, the revision petitioners, were arrested on 17.11.2007 morning. Presence of crime number in the arrest memo becomes relevant here, and it substantiates the case of the revision petitioners, that they were not arrested on 16.11.2007, and only after registering the crime, their arrest memo was prepared. So much so the prosecution case becomes doubtful. 15. The contraband was allegedly seized from the possession of the revision petitioners on 16.11.2007 at 8.30 p.m. It was seen before the court on produced jurisdictional Magistrate’s 17.11.2007, as seen from Ext.P18 property list. PW4, the detecting officer, who is the Circle Inspector of Police, ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [37 x 7] intentionally omitted <==** Nedumkandam, deposed before court that, the articles seized, along with the sample, were kept in the room of the Sub Inspector under his lock and key. There was no reason for PW4, for not keeping those articles in his own room, to ensure its safe custody. The Sub Inspector of Police, in whose room, the contraband and sample were allegedly kept, was not a witness in this case. Learned counsel for the revision petitioners would argue that, the prosecution was bound to explain the delay of one day, in producing the contraband, along with the sample, before the jurisdictional court, and prosecution was bound to show, how and in what condition, the contraband articles were kept, before it was produced before the court. When there is delay, however short it may be, prosecution is bound to explain the delay satisfactorily, and also should prove, how and in what condition, the same was preserved, till it was produced before the court [See _**Chandran v. State of Kerala**_ ILR 2022 (2) Ker. 807:2021 (5) KLT Online 1099]. _`1`_ 6. On going through Ext. P25 chemical analysis report, it could be seen that, the sample was forwarded from Judicial First ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [37 x 7] intentionally omitted <==** Class Magistrate's Court, Nedumkandam to the laboratory on 20.11.2007. But, it reached the laboratory only on the next day, that is, 21.11.2007. Learned counsel for the revision petitioners would submit that, prosecution failed to explain the reason for delay in reaching the sample before the chemical examiner’s lab. The Police Constable, who took the sample to the lab, was not examined to explain the reasons for delay. 17. In **Krishnadas v. State of Kerala** [2019 KHC 191], this Court had occasion to consider the impact of delay in reaching the sample before the laboratory and it was held that, when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. Here, in the case on hand, the delay, though it was only one day, is not properly explained by the prosecution, and it is a suspicious circumstance to doubt tamper proof despatch of the sample. 18. In _**Madhavan v. State of Kerala**_ (2019 (4) KLT 18), this Court emphasized the need for establishing the link evidence starting from the seizure of the sample, till the same reaches the ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [37 x 7] intentionally omitted <==** hands of the chemical examiner. When the prosecution relies upon the report of the chemical analysis, in respect of the sample sent for analysis, to prove the offence alleged against the accused, it can succeed only if it is shown that, the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. 19. In _**Sasidharan v. State of Kerala [**_ 2007 (1) KLT 720], this Court held that, the prosecution has a duty to prove that, it was the _sample taken_ from the contraband liquor seized from the accused, _reached the hands of the chemical examiner in a foolproof condition._ 20. We have seen that, there occurred unexplained delay of one day in reaching the contraband and the sample bottle before the jurisdictional Magistrate’s court. Moreover, the delay of one day in reaching the sample before the chemical examiner’s lab also is not explained by the prosecution. These delays are sufficient to doubt tamper proof despatch of the sample starting from the seizure till it reached the hands of the chemical examiner. ``` Crl.R.P. No. 2440 of 2012 ``` **==> picture [37 x 7] intentionally omitted <==** 21. The conviction and sentence imposed on the revision petitioners by the trial court as well as the appellate court, without noticing these vital aspects, are liable to be set aside. 22. In the result, the conviction and sentence imposed on the revision petitioners by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act are hereby set aside. They are found not guilty of the offences alleged, and they are acquitted under Section 235(1) of Cr.P.C. Their bail bonds are cancelled and they are set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** ## **SOPHY THOMAS** **JUDGE** ## RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```