Rajamma v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 CRL.REV.PET NO. 1812 OF 2007 AGAINST THE ORDER/JUDGMENT CRA 187/1999 OF ADDITIONAL DISTRICT COURT (ADHOC)-I, THIRUVANANTHAPURAM CC 112/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,NEYYATTINKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** RAJAMMA, D/O AMMU, KULATHINKARA VEEDU, PALLICHAL VILLAGE,NEYYATTINKARA. BY ADV SRI.S.MOHAMMED AL RAFI ## **RESPONDENT/RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** PP - RENJIT GEORGE ## **THIS CRIMINAL REVISION PETITION HAVING BEEN** **FINALLY HEARD ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.1812 of 2007 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **CRL. R.P. No.1812 of 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of September, 2023 ## **ORDER** The revision petitioner is the accused in CC No.112/97 of the Judicial First Class Magistrate's Court-III, Neyyattinkara alleging commission of offence punishable under Section 55(a) of Abkari Act. 2. The prosecution case in brief is that on 13.02.1997, at 12.30 pm, the revision petitioner was found in possession of 10 litres of arrack contained in a black can kept in a gunny bag in front of Sub-Registrar Office, Balaramapuram. The Excise Inspector, on petrol duty, intercepted the revision petitioner, arrested her and registered a crime as crime No.19/97. 3. The prosecution examined PWs 1 to 4 witnesses and marked Exts. P1 to P3 documents and identified MOs 1 and 2. The trial court convicted the revision petitioner under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.25,000/- and in default of the payment of fine, to undergo simple imprisonment :3: CRL. R.P. No.1812 of 2007 for a period of 3 months. The appeal preferred by the revision petitioner as Crl. Appeal No.187/1999 was dismissed by the Additional District & Sessions Judge, Fast Track Court – I, Thiruvananthapuram, confirming the conviction and sentence passed by the trial court. 4. The learned counsel for the revision petitioner would contend that the prosecution failed to prove the case beyond a shadow of doubt and there are several lacunas in the prosecution evidence. It is submitted that the arrest memo has not been produced before the trial court. It is contended that the alleged date of occurrence of the crime is 13.02.1997 and even going by the prosecution case, the thondi articles were produced before the court only on 17.02.1997 and there is an unexplained delay of almost 4 days. The judgments of the lower courts have also taken note of the said facts. It is the further case that in Ext.P1 Mahazar, there is no sample seal affixed and further contended that no forwarding note was produced and marked. It is also contended that the independent witness examined by the prosecution turned hostile. Even the property list is not seen produced and marked before the trial court. The samples were CRL. R.P. No.1812 of 2007 :4: taken by the court for being sent for chemical examination and this being a procedural flaw, the revision petitioner is entitled to an acquittal. 5. Admittedly, no arrest memo or arrest intimation was produced by the prosecution. The Apex Court in _**D.K.Basu v. State of West Bengal [(1997) 1 SCC 416]**_ has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest. This court in _**Baburaj v. State of Kerala**_ _**[2021 (6) KLT 416]**_ 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 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 CRL. R.P. No.1812 of 2007 :5: the seizure of the contraband has no existence without proving the factum of the arrest. This court in **R** _**afeeque 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. Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 6. The occurrence of the crime is on 13.02.1997 and admittedly the thondi articles were produced before the court only on 17.02.1997 and there is an unexplained delay of almost 4 days. This court in _**Ramachandran v. State of Kerala [2021 (1) KLT 793]**_ has held that unexplained delay 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. 7. It is further contended that there is no specimen seal in the mahazar and further that no forwarding note is produced and marked. Ext.P1 is the mahazar. No specimen seal is seen affixed CRL. R.P. No.1812 of 2007 :6: on Ext P1 mahazar. 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 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. 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 _**Natarajan 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 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)]**_ and in _**Moothedath Sivadasan v. State of**_ CRL. R.P. No.1812 of 2007 :7: _**Kerala [2021 (1) KLT 744].**_ 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. 8. The revision petitioner has further contended that the alleged contraband was produced before the court and the sample was taken by the court itself. The judgment of the appellate court reveals that on the basis of the requisition made by PW4, the sample of arrack is taken from MO1 can by the court and forwarded the same for chemical examination. This court in _**Baburaj**_ **’** s case supra has held that drawing the samples and sealing the same are acts within the exclusive province of the police official or the excise official concerned and the magistrate is not empowered to draw samples from the contraband produced CRL. R.P. No.1812 of 2007 :8: before him by the detecting officer and the said act of drawing samples by the court will go against the prosecution case. A similar view was taken in _**Smithesh v. State of Kerala, 2019 (2) KLT 974.**_ 9. The above vital aspects were not considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the court below cannot be sustained. 10. In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and she is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. She is set at liberty forthwith. Needless to say, if the revision petitioner/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** sm/