P. Sundar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 4024 OF 2009 ``` ``` AGAINST THE JUDGMENT IN CRA 67/2008 OF SESSIONS COURT,THODUPUZHA SC 564/2005 OF ASSISTANT SESSIONS COURT,KATTAPPANA ``` ## **`REVISION PETITIONER/APPELLANT/FIRST ACCUSED:`** ``` P.SUNDAR, S/O.PALANIMUTHU ESTATE, POOPARA KARA, POOPARA VILLAGE, UDUMBANCHOLA TALUK. ``` ``` BY ADVS. T.G.SUNIL (PRANAVAM) J.OM PRAKASH C.X.ANTONY BENEDICT ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ``` ``` 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.4024 of 2009 2 ## **VIJU ABRAHAM, J** ## **.............................................. Crl.R.P.No.4024 of 2009 .............................................. Dated this the 16[th] day of October, 2023** ## **ORDER** Revision petitioner is the 1[st] accused in S.C.No.564 of 2005 on the file of the Assistant Sessions Court, Kattappana registered alleging commission of offences punishable under Sections 55(h), 8(1) and 8(2) of the Kerala Abkari Act. 2. The allegation against the revision petitioner was that while the Sub Inspector of Police, Santhanpara was on patrol duty on 29.10.2001 at about 5.00 p.m., he received information that revision petitioner was selling arrack in a footpath on the western side of a grocery shop which belongs to one Paulose in Poopara Kara. The police party proceeded to the spot and found the revision petitioner holding a bottle containing some liquid in one hand and with a glass tumbler in the other hand. The revision petitioner was nabbed and on examination of the contents of the bottle, the Sub Inspector of Police was satisfied that it was arrack. Thereby the revision petitioner/1st accused has committed the alleged offences. 3. The prosecution in support of their case examined PW1 to PW4 and marked Exts.P1 to P10 and identified MO1 to MO5. 4 **.** The trial court on consideration of the evidence adduced found that the accused is guilty of the offences under Sections 8(1) and 8(2) Crl.RP No.4024 of 2009 3 of the Abkari Act and convicted and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months **.** The 2[nd] accused was acquitted of the charges levelled against him. It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. Though an appeal was preferred as Crl.Appeal No.67 of 2008 before the Sessions Court, Thodupuzha, the same was dismissed confirming the conviction and sentence imposed by the trial court. 5. Learned counsel appearing for the revision petitioner has raised the following contentions. The primary contention raised is that though it is alleged that the petitioner was arrested on the spot on 29.10.2001, no arrest memo was produced to substantiate the same. Yet another contention raised is that no forwarding note is seen produced and PW4 has not given any evidence to substantiate the forwarding of the sample to the chemical analysis laboratory. Another contention raised by the revision petitioner is that though the occurrence was on 29.10.2001 and Ext.P1 property list was prepared on the very same day, the alleged contraband along with the property list was produced before the court only on 01.11.2001, the delay has not been explained. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the Crl.RP No.4024 of 2009 4 statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The primary contention raised is that though it is alleged that the petitioner was arrested on the spot on 29.10.2001, no arrest memo was produced to substantiate the same. The Apex Court in _**D.K.Basu v. State of West Bengal (1997) 1 SCC 416**_ , has held that preparation of arrest memo and arrest intimation is a mandatory requirement and that the arrest memo should be countersigned by the arrestee and shall contain the time and date of arrest. This court in **Baburaj’s** case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and Crl.RP No.4024 of 2009 5 therefore the noncompliance of mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in **Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KLT SN 83** which held that noncompliance 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. This court in **Rafeeque v. Sub Inspector of Police, 2020 (4) KLT 188** has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT 371** . Therefore, the noncompliance of these mandatory requirements makes the prosecution case doubtful. 8. Yet another contention raised is that no forwarding note is seen produced and PW4 has not given any evidence to substantiate the forwarding of the sample to the chemical analysis laboratory. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, the forwarding note itself is not produced and marked. This court in **Vijayan v. State of Kerala, 2021 (5) KLT 321,** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to Crl.RP No.4024 of 2009 6 receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. In **Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 1030** , it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note (in the present case no forwarding note is produced and marked), there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96), Joseph v. State of Kerala [2009 (4) KHC 537]** , **Ajayakumar v. State of Kerala [2021 KHC 3872]** , **Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Faijas v. State of Kerala (2020 KHC 5259** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** This court in **Sasidharan v. State of Kerala, 2007 (1) KLT 720** has considered and emphasized the legal obligation cast on the prosecution to prove that Crl.RP No.4024 of 2009 7 the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition. Relying on the judgment of the Apex Court in **State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314** , this court in **Sasidharn** ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The Apex Court in **Vijay Pandey v. State of U.P., AIR 2019 SC 3569** has 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 one tested are to be correlated. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. 9. Another contention raised by the revision petitioner is that though the occurrence was on 29.10.2001 and Ext.P1 property list was prepared on the very same day, the alleged contraband along with the property list was produced before the court only on 01.11.2001, the delay has not been explained. Petitioner relies on the judgment in **Ravi v. State of Kerala and another, 2011 (3) KHC 121** which held Crl.RP No.4024 of 2009 8 that though the Abkari Act or the Code of Criminal Procedure does not mandate production of the articles seized before the Magistrate forthwith, the statute prescribes that the seizure of the property should be reported to the court forthwith and therefore the court held that the property shall be produced before the court without unnecessary delay and there should be an explanation for the delay when there is a delay in producing the property before the court. Revision petitioner would submit that a perusal of the evidence of PW3 detecting officer would show that there is no proper explanation adduced for the delay in producing the same before the court which is fatal to the case of the prosecution. This court in **Ramachandran v. State of Kerala (2021 (1) KLT 793** has held that unexplained delay in producing the contraband and sample before the court is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. In **Vikraman v. State of Kerala 2018 KHC 3177)** it was held that when there is no proper explanation for the delay, the possibility of tampering with the properties during the said period cannot be ruled out. Hence, I am of the opinion that the unexplained inordinate delay is fatal to the case of the prosecution. 10. The above vital aspects were not considered by the courts below Crl.RP No.4024 of 2009 9 while appreciating the evidence and consequently convicting and sentencing the revision petitioner/1st accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/1st accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/1st accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/-** **VIJU ABRAHAM JUDGE** cks