Rajan M. Raphel v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** **CRL.A NO. 1543 OF 2007** **AGAINST THE JUDGMENT IN SC 89/2005 OF ADDITIONAL DISTRICT COURT** **(ADHOC-I), THODUPUZHA** ## **APPELLANT/ACCUSED:** RAJAN M.RAPHEL, S/O RAPHEL, AGED 33 YEARS, MANIYAMCHERIL HOUSE, IYMURI KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV SRI.ANIL K.MUHAMMED ## **RESPONDENT/COMPLAINANT:** STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1543 of 2007 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.1543 of 2007 --------------------------------------Dated this the 20[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 21.07.2007, passed by the III[rd] Additional Sessions Court (Adhoc-I), Thodupuzha in S.C.No.89/2005, the accused has preferred this appeal. The appellant is accused No.1 in Crime No.31/2000 of the Excise Range, Devikulam. The appellant and the other accused were charge sheeted under Sections 55(a) and 8(2) of the Abkari Act. 2. The appellant and accused No.3 entered appearance before the Trial Court. During the course of the trial, the appellant absconded. The Trial Court proceeded with the trial against accused No.3. Accused No.3 was acquitted of the charges. The case against the appellant was split up and refiled as S.C No.89/2005. The appellant, thereafter, appeared before the Trial Court and faced the trial. The appellant was convicted under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo Crl.A No.1543 of 2007 3 rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 3. The prosecution case is that on 03.10.2000 at 2.00 p.m. the appellant and two others were found transporting 420 litres of spirit in an Ambassador Car bearing No.KLN/1859 along KochiMadurai road at Pallivasal, in violation of the provisions of the Abkari Act. 4. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) 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 appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a) 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. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P9 and MO1 series. 6. After the closure of the prosecution evidence, statement of Crl.A No.1543 of 2007 4 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 accused for the aforesaid offences. 7. Heard Sri. Anil.K.Muhammed, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 9. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: (a) The delay in the production of the properties, including the sample, has not been Crl.A No.1543 of 2007 5 satisfactorily explained by the prosecution. - (b) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (c) Exhibit P4 forwarding note/requisition for - sending sample does not contain the specimen of the seal. - (d) The officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 10. The alleged seizure was effected on 03.10.2000. The Excise Inspector, Devikulam and party detected the offence. Exhibit P3 property list shows that the properties, including the sample reached the Court, only on 05.10.2000. The prosecution has not offered any explanation for the delay in the production of the properties including the sample. 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: Crl.A No.1543 of 2007 6 “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 delay and that there should be explanation for the delay when there is delayed production of the property. 11. 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 sample could not be ruled out. 12. Exhibit P1 is the seizure mahazar prepared at the scene of occurrence to evidence arrest and seizure. Exhibit P1 does not contain the nature of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. Exhibit P4 forwarding Crl.A No.1543 of 2007 7 note/requisition for sending sample does not contain the specimen of the seal used at the time of sampling. The officer with whom the sample was forwarded to the laboratory has also not been mentioned in Ext.P4. The space meant for entering the name of the official with whom the sample was forwarded was left vacant. The date on which the sample was forwarded to the laboratory is not evident. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P9 Certificate of Chemical Analysis shows that the sample was sent to the laboratory as per letter dated 19.09.2001 of the Judicial First Class Magistrate, Devikulam. The sample reached the laboratory on 20.09.2001. The Excise guard by name Sri. P.M.Jose delivered the sample to the laboratory. 13. The sample remained in the custody of the property clerk of the Court, the official who received the sample from the Court and Sri. P.M.Jose, the Excise guard who delivered the sample to the laboratory. None of those witnesses were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Crl.A No.1543 of 2007 8 Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] and Kumaran v. State of Kerala [2016 (4) KLT 718]. 14. The omission on the part of the detecting officer to describe the nature of the seal used and the non-incorporation of the specimen seal in Ext.P4 forwarding note is also fatal to the prosecution. 15. 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 Court to satisfy the genuineness of the sample produced in the Court. 16. In Rajamma v. State of Kerala [2014 (1) KLT 506] , this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 17. In the present case, there is nothing to show that the Crl.A No.1543 of 2007 9 specimen seal was forwarded to the Chemical Examiner for verification. Since the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 18. The defence also disputes the arrest of the appellant. 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 Crl.A No.1543 of 2007 10 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 arrestee. 19. 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 arrest by the officer who arrested the accused. Therefore, the prosecution case built upon the foundation that the accused was arrested while possessing the contraband substance would fall to ground. 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 ground. 20. This Court in Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308] had considered a similar fact situation. Crl.A No.1543 of 2007 11 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 the arrest. Therefore, in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes highly doubtful. 21. 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. 22. 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 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]}. Crl.A No.1543 of 2007 12 23. In the instant case, the prosecution failed 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. 24. 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 offences alleged. He is set at liberty The appeal is allowed as above. Sd/K.BABU, JUDGE KAS