Rajan s/o Appukuttan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944** **CRL.A NO. 1971 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 585/2007 OF ADDITIONAL SESSIONS** **COURT (ADHOC), FAST TRACK COURT NO.I, THRISSUR** ## **APPELLANT/ACCUSED:** RAJAN, S/O APPUKUTTAN, ACHENGADAN HOUSE, NEDAMPADAM, VARANTHARAPPILLY, THRISSUR. BY ADVS. C.HARIKUMAR ARAVINDA KUMAR BABU T.K. ## **RESPONDENT/COMPLAINANT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1971 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1971 of 2008 --------------------------------------Dated this the 14[th] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 06.08.2008, passed by the Additional Sessions Court (Adhoc), Fast Track-I, Thrissur in S.C.No.585/2007, the accused has preferred this appeal. The appellant was convicted under Section 58 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 21.05.2005 at about 6.15 p.m., the accused was found in possession of 2.5 litres of illicit liquor and a glass tumbler near St.Thomas Church at Nadeppadam desom. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Crl.A No.1971 of 2008 3 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, charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P9 and MOs 1 to 3. 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/accused for the aforesaid offence. 6. Heard Sri. C.Harikumar, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.1971 of 2008 4 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: - (i) The arrest of the accused as alleged by the prosecution is doubtful. - (ii) The prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The arrest and seizure were effected by the Excise Inspector, the Excise Enforcement and Anti Narcotic Special Squad, Thrissur (PW1) on 21.05.2005. According to PW1, the accused was arrested along with the contraband substance at the scene of occurrence. 9. The defence disputes the arrest of the appellant on the ground that 'arrest memo' was not prepared and produced before the Court. 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 Crl.A No.1971 of 2008 5 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 arrestee. 10. 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 Crl.A No.1971 of 2008 6 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. 11. 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 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. 12. According to the prosecution, the properties including the sample were produced before the Court on 22.05.2005. The list of properties by which the sample and other properties were 7 Crl.A No.1971 of 2008 produced before the Court has not been marked. There is nothing to show that the specimen of the seal used was forwarded to the Chemical Examiner's Laboratory to verify the genuineness of the sample produced. Forwarding note/requisition for sending sample to the laboratory has not been produced and marked. 13. The sample remained in the custody of the the property clerk of the Court till 17.06.2005. As per letter dated 17.06.2005 of the Judicial Magistrate of First Class, Irinjalakuda the sample was forwarded to the laboratory. The sample reached the laboratory on 18.06.2005 and the sample was delivered to the laboratory by Sri.C.K.Suresh, an Excise Guard. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials to prove the tamper-proof despatch of the sample is fatal to the prosecution. 14. 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 Crl.A No.1971 of 2008 8 the Chemical Examiner's laboratory. 15. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical 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. 16. 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 re- 9 Crl.A No.1971 of 2008 emphasized 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 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]. 17. In the instant case, the prosecution failed to show that the contraband substance seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 18. 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 Crl.A No.1971 of 2008 10 proof by itself and that the sample seized and that tested have to be co-related. 19. 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]}. 20. The learned counsel for the appellant/accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case, the offence was detected by PW1, the Excise Inspector of Excise Enforcement and Anti-Narcotic Special Squad, Thrissur. The detection was made on 21.05.2005. The Government Crl.A No.1971 of 2008 11 notification issued as SRO.No.234/1967 had authorised various categories of Excise officials to discharge the various functions under the Kerala Abkari Act as Abkari officers. By the said notification only Abkari officials attached to Excise Range offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was an Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad had no such Crl.A No.1971 of 2008 12 ## powers. 21. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 22. The learned counsel for the appellant relied on Suresh v. State of Kerala [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in Suresh's case (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 23. In the instant case, the prosecution was unable 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 entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the Crl.A No.1971 of 2008 13 appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS