High Court of KeralaSingle Judge2022-10-12Appellant acquitted; conviction and sentence se...

Rajendran @ Rajamany v. State of Kerala

Case / Petition Number:CRL.A No. 1429 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Babu
Judgment Date: 2022-10-12
Court Decision / Holding: The accused is acquitted; the appeal is allowed; conviction and sentence set aside.
Final Disposition: Appellant acquitted; conviction and sentence set aside; appeal allowed.

Parties to the Case

Appellants / Petitioners

Rajendran @ Rajamany, S/o Subramanian, 7th Muri Lines, Aalamara Chuvadu Bhagam Pensuarest, Kavukkulam Bonami Kara

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Sooraj T. Elenjickal

Counsels for Respondents

• Smt. Rekha. S (Sr. Public Prosecutor)

Case Synopsis & Summary

This is a Kerala High Court Criminal Appeal by the accused Rajendran @ Rajamany challenging a Sessions Court conviction under the Abkari Act for possession of illicit arrack and Kingfisher beer. The trial court found the accused guilty under Sections 55(a), 55(h) and 8(2) of the Abkari Act and sentenced him to one year’s rigorous imprisonment and a fine of Rs. 1 lakh. The High Court, on 12 October 2022, allowed the appeal and acquitted the appellant, holding that the prosecution failed to establish crucial compliance with mandatory arrest procedures and the chain of custody relating to the contraband samples. The court emphasized that arrest memo and arrest intimation were not produced and that, based on D.K. Basu and Ramankutty, non-compliance with mandatory arrest formalities fatally undermines the prosecution. It also highlighted that the sample referred to in the Chemical Analysis Certificate (Ext. P8) lacked verifiable linkage to the seized contraband because the sample’s custody and handling (including examination of officials who transported the sample) were not established, and the samples (or their transfer to the laboratory) were not adequately corroborated. Citing Daulat Ram and Vijay Pandey, the court held that mere laboratory reports cannot conclusively prove possession without a proven chain of custody. As a result, the conviction could not stand. The appeal is allowed and the accused is acquitted.

Provisions of Law Cited

Abkari Act, Section 55(a)Abkari Act, Section 55(h)Abkari Act, Section 8(2)Code of Criminal Procedure, Section 313Code of Criminal Procedure, Section 232

Legal Doctrines & Maxims

Arrest memo mandatory (D.K. Basu v. State of West Bengal)
Chain of custody / link between seized sample and analysed sample (State of Rajasthan v. Daulat Ram; Sasidharan v. State of Kerala)
Laboratory evidence must be corroborated with linkage to seized sample (Vijay Pandey v. State of U.P)
Non-examination of officials handling evidence fatal to prosecution (Daulat Ram)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the arrest was doubtful and that the prosecution failed to prove that the contraband was subjected to chemical analysis with a proper chain of custody. The arrest memo, which is mandatory per D.K. Basu v. State of West Bengal, was not produced, nor was arrest intimation; absence of these documents undermines the allegation that the accused was lawfully arrested and in possession of the contraband. Further, the prosecution did not establish that the material subjected to chemical analysis was the same material seized from the accused, as required by jurisprudence including Daulat Ram and Sasidharan. The lack of examination of officials who handled the sample and the delay in analysis erode the reliability of Ext. P8. Therefore, the accused seeks acquittal on grounds of doubtful arrest and unreliable laboratory evidence.

Contentions of Respondents

The State contends that the conviction rested on credible evidence including seizure of contraband and a chemical analysis certificate (Ext. P8). It argues that while the arrest memo’s absence is not trivial, the overall evidence—including the manner of seizure, the testimony of witnesses, and the chemical analysis—supports the finding of possession. The respondents rely on established precedents to uphold the integrity of evidence and the chain of custody, asserting that the trial court’s judgment was grounded in the material before it and that the absence of arrest memo does not automatically nullify the charge where other corroborative evidence exists.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
D.K. Basu v. State of West Bengal	(1997) 1 SCC 416	Positive	The court quotes Basu to emphasize that arrest memos are mandatory and must be produced; non-production undermines the prosecution.
Ramankutty v. Excise Inspector, Chelannur Range	(2013) 3 KHC 308	Positive	Used to support that non-compliance with arrest formalities fatal to prosecution.
State of Rajasthan v. Daulat Ram	AIR 1980 SC 1314	Positive	Cited for chain of custody and reliability issues in handling samples and ensuring tamper-proof transfer.
Vijay Pandey v. State of U.P.	AIR 2019 SC 3569	Positive	Lab reports alone are not conclusive; must co-relate seized sample with tested sample.
Sasidharan v. State of Kerala	(2007) 1 KHC 275	Positive	Supports requirement that prosecution must prove linkage between seized material and the sample analysed.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944** **CRL.A NO. 1429 OF 2007** **AGAINST THE JUDGMENT IN SC 141/2005 OF IIIRD ADDITIONAL SESSIONS** ## **COURT, THODUPUZHA** **CP 3/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, PEERUMEDU** ## **APPELLANT/ACCUSED:** RAJENDRAN @ RAJAMANY, S/O SUBRAMANIAN, 7TH MURI LINES, AALAMARACHUVADU BHAGAM PENSUAREST, KAVUKKULAM BONAMI KARA, BY ADV SRI.SOORAJ T.ELENJICKAL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA. S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1429 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1429 of 2007 --------------------------------------Dated this the 12[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 07.07.2007, passed by the III[rd] Additional Sessions Court, Thodupuzha in S.C.No.141/2005, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55(a) 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 19.04.2002 at 6.30 p.m., the accused was found in possession of 7 litres of illicit arrack in a 20 litre can and King Fisher Beer in two bottles each containing 650 ml. at Elappara in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a), 55(h) 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.1429 of 2007 3 appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a), 55(h) 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 6 and proved Exts.P1 to P10 and MOs 1 and 2. 5. After the closure of the prosecution evidence, 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 accused for the aforesaid offences. 6. Heard Sri. Sooraj T.Elenjickal, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: Crl.A No.1429 of 2007 4 - (i) The arrest of the accused as alleged by the prosecution is doubtful. - (ii) 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. 8. The arrest of the accused is challenged on the ground that the arrest memo as required has not been produced. The case of the prosecution is that the accused was arrested from the spot along with the contraband substance. But the arrest memo has not been produced in this case. 9. 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 Crl.A No.1429 of 2007 5 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 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 Crl.A No.1429 of 2007 6 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. The sample remained in the custody of the property clerk of the Court. Exhibit P8 shows that the property was forwarded to the Chemical Examiner as per letter dated 02.12.2002 of the Judicial First Class Magistrate, Peermedu. The sample was delivered in the laboratory on 08.12.2002 by a Police Constable No.2529. Both these officials were not examined as witnesses by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal as the prosecution Crl.A No.1429 of 2007 7 failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 13. In the present case, 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. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 14. 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. 15. 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.1429 of 2007 8 16. 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. 17. 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. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS