Perumal v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944** **CRL.A NO. 1518 OF 2007** **AGAINST THE JUDGMENT IN CP 10/2005 OF JUDICIAL MAGISTRATE OF FIRST** **CLASS , (MUNSIFF MAGISTRATE COURT) ADIMALI** **SC 431/2005 OF DISTRICT COURT & SESSIONS COURT, THODUPUZHA** ## **APPELLANT/ACCUSED:** PERUMAL, S/O. NALLATHEVAR, R.G.P.11/415 NUMBER VEEDU, KHAJANAPPARA KARA, RAJAKUMARY VILLAGE. BY ADV SAJI MATHEW ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1518 of 2007 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.1518 of 2007 --------------------------------------Dated this the 6[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 16.07.2007, passed by the III[rd] Additional Sessions Court, Thodupuzha in S.C.No.431/2005, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55(a), 55(b), 55(g) and 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 12.07.2002 at 4.00 p.m, the appellant/accused was found manufacturing arrack in VKS Estate at Khajanappara kara in Rajakumari village in Idukki District. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a), 55(b), 55(g) and 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 Crl.A No.1518 of 2007 3 appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a), 55(b), 55(g) and 8(2) 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 4 and proved Exts.P1 to P8 and MOs 1 to 7. 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 for the aforesaid offences. 6. Heard Sri. Saji Mathew, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The accused was allegedly arrested while possessing 200 Crl.A No.1518 of 2007 4 litres of wash and 5 litres of arrack on the premises of the VKS Estate. According to the prosecution, a juvenile was also arrested from the spot, who was implicated as accused No.2 in this case. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: - (a) The prosecution failed to establish the arrest of - the accused from the alleged place of occurrence. - (b) The inordinate delay of 19 days in bringing the properties, including the bottles containing the samples, has not been satisfactorily explained by the prosecution. - (c) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The challenge of the defence is that the accused was not arrested from the place of occurrence as alleged by the prosecution. According to the accused, he was summoned to the Police Station and taken into custody at the instigation of the owner Crl.A No.1518 of 2007 5 of the Estate. The learned counsel for the accused relied on the non-production of the arrest memo, arrest intimation etc, to substantiate his contentions. 10. 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 arrest is himself such a friend or a relative of the Crl.A No.1518 of 2007 6 ## arrestee. 11. 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. The prosecution case has been built up on 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. 12. This Court in Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308] 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 arrest. Therefore, in the absence of evidence regarding Crl.A No.1518 of 2007 7 the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 13. The alleged seizure was on 12.07.2002. Exhibit P3, property list, shows that the properties including the samples were produced before the Court only on 01.08.2002. The explanation offered by PW1, the detecting officer was that he was busy with his official engagements. The explanation offered by the prosecution is not satisfactory. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, 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.1518 of 2007 8 delay and that there should be an explanation for the delay when there is delayed production of the property. 14. 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 samples could not be ruled out. 15. The bottles containing the samples remained in the custody of the property clerk of the Court and the Police official who delivered the samples to the laboratory. These witnesses were not examined by the prosecution. Non-examination of these witnesses is fatal to the prosecution case. 16. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 17. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Crl.A No.1518 of 2007 9 Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 18. In Sasidharan v. State of Kerala [2007 (1) KLT 720] , this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (supra) this Court 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. In Sathi v. State of Kerala [2007 (1) ILR 718 (Ker.)], this Court reemphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc., of the contraband to be sent for Chemical Examination. In Sathi's case (supra), this Court further held that Courts could presume that an Crl.A No.1518 of 2007 10 official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under Section 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in Sasidharan's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 19. In the absence of any evidence to show that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory, no evidentiary value can be attached to Ext.P8 Certificate of Chemical Analysis. 20. 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. 21. 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 Crl.A No.1518 of 2007 11 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]}. 22. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the samples analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 23. 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 accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS