Rajendran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 CRL.A NO. 753 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 17.04.2007 IN SC 368/2002 OF ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC), MAVELIKKARA CP 87/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ``` ## **`CHENGANNUR`** ## **`APPELLANT/ACCUSED:`** ``` RAJENDRAN, S/O THANKASWAMI, MARATTUTHARAYIL,KUTTEMPEROOR MURI, MANNAR VILLAGE,CHENGANNUR TALUK. BY ADV SRI.N.ASHOK KUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.753 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A No. 753 of 2007 --------------------------------------------- Dated this the 9[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 17.04.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc), Mavelikara in Sessions Case No.368/2002 the accused has preferred this appeal. The appellant was convicted under Section 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 07.12.1999 at 9.15 p.m., the accused was found transporting 1½ litres of illicit arrack in a 5 litre black plastic cannas at Nandiyattu junction in front of the house of one Kuruvila in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 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 ``` Crl.A.No.753 of 2007 ``` ``` 3 ``` charge was framed against him for the offence punishable under Section 8(2) 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 4 and proved Exts. P1 to P5 and MOs 1 to 2. 5. After the closure of the evidence on behalf of the prosecution, 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. 6. Heard Sri.N.Asok Kumar, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. ``` Crl.A.No.753 of 2007 ``` ``` 4 ``` 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- - (1) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence reached the Court in a tamper proof condition and the same was subjected to chemical analysis in the laboratory. - (2) The prosecution failed to establish the alleged arrest of the accused. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (1) Ext.P1 seizure mazahar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (2) The detecting officer was not examined to prove the nature of the seal used. - (3) No specimen seal was produced and marked. - (4) The officials who handled the sample ``` Crl.A.No.753 of 2007 ``` ``` 5 ``` during its transit from the place of occurrence to the laboratory were not examined to prove the tamper proof handling of the sample. 9. The seizure was effected by Sri.K.P.Vijayan, Assistant Excise Inspector, Excise Range Officer, Chengannur on 07.12.1999. He had prepared Ext.P1 mahazar to evidence seizure, arrest and drawing of the sample. He was not examined as a witness. Ext.P1 mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The specimen of the seal was also not produced before the Court to ensure the genuineness of the sample produced before the Court. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory. Forwarding note/requisition for sending the sample was not produced and marked. The sample was produced by the detecting officer before the Excise Inspector, Chengannur Range on 07.12.1999. The sample was produced before the Court on 08.12.1999, it remained in the custody of the Property Clerk till 13.12.1999. Prosecution has not given evidence as to the person with whom the sample was forwarded to the Chemical Examiner’s ``` Crl.A.No.753 of 2007 ``` ``` 6 ``` Laboratory. Ext.P5 certificate of analysis shows that the sample was forwarded to the laboratory on 13.12.1999, as per letter issued by the Judicial First Class Magistrate-II, Chengannur. The sample was delivered to the laboratory by Sri.G.Suresh, an Excise Guard on 14.12.1999. Therefore, the sample remained in the hands of the detecting officer, the Property Clerk of the Court, the Excise Guard who received the sample from the Court and Sri.G.Suresh, the Excise Guard, who handed over the sample to the laboratory. Those officials were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 10. 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. 11. 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 ``` Crl.A.No.753 of 2007 ``` ``` 7 ``` 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. 12. 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 (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-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 (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. ``` Crl.A.No.753 of 2007 ``` ``` 8 ``` This Court specified that the presumption under S. 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 (supra)** and **Sathi (supra)** has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** . 13. In **Bhaskaran v. State of Kerala (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. 14. 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. 15. In **Ramachandran v. State of Kerala (2021 (1) KLT 793)** while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not ``` Crl.A.No.753 of 2007 ``` ``` 9 ``` produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 16. In the present case, the prosecution has not succeeded in proving that the arrack involved in this case was sent to the Chemical Examiner’s Laboratory for analysis. Therefore, Ext.P5 certificate of chemical examination has no evidentiary value. 17. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 18. 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], ``` Crl.A.No.753 of 2007 ``` ``` 10 ``` ## **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 19. The defence also challenges the arrest of the accused as alleged. In **D.K. Basu v. State of West Bengal M ((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 arrestee. 20. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed ``` Crl.A.No.753 of 2007 ``` ``` 11 ``` 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 ground. 21 . 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 the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 22. In the instant case, the prosecution was unable to ``` Crl.A.No.753 of 2007 ``` ``` 12 ``` 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. 23. The conviction and sentence recorded by the trial court cannot be sustained. In the result, the accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK