Raju, S/o Kuttapan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 ``` ``` CRL.A NO. 988 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 13.05.2008 IN SC 632/2003 OF ADDITIONAL DISTRICT COURT-I(ADHOC), KOLLAM CP 264/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ``` ## **`KARUNAGAPPALLY`** ## **`APPELLANT/ACCUSED:`** ``` RAJU, S/O KUTTAPAN, PUTHEN KANDATHIL VEEDU, NAMBARUVIKAL MURI,KARUNAGAPPALLY, KOLLAM. ``` ``` BY ADV. SRI.C.RAJENDRAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE, STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.988 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A No.988 of 2008 --------------------------------------------- Dated this the 7[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 13.05.2008, passed by the Additional District and Sessions (Adhoc) Court-I, Kollam in Sessions Case No.632/2003, the accused has preferred this appeal. The appellant/accused 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 16.08.2001 at 2.15 p.m., the accused was found in possession of 32 covers of arrack, each containing 100 ml, on the south western yard of Puthen Kantathil house, Numbarauvikala muri, Karunagapally village, 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.988 of 2008 ``` ``` 3 ``` charge was framed against him for the offence punishable under Sections 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 P6, and MO 1. 5. After the closure of the evidence on behalf of the prosecution, 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. 6. Heard Sri.C.Rajendran , 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 ground that the ``` Crl.A.No.988 of 2008 ``` ``` 4 ``` 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 learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions:- - (i) There is nothing to show that the specimen of - the seal was produced before the Court to ensure the genuineness of the sample produced. - (ii) The delay in the production of the properties including the sample has not been satisfactorily explained. (iii) The copy of the forwarding note/requisition for sending the sample to the laboratory has not been produced and marked. 9. The alleged seizure was effected on 16.08.2001 by the Additional Sub Inspector of Police Karunagaplly (PW1). PW1 arrested the accused at the scene of occurrence. He seized the contraband substance from the place of occurrence. The properties including the sample were produced before the Court only on 05.09.2001. The prosecution has not offered any satisfactory ``` Crl.A.No.988 of 2008 ``` ``` 5 ``` explanation for the delay in the production of the sample. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held thus: “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.P.C 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 **Ravi's 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 samples could not be ruled out. 12. There is no evidence to show that the specimen of the ``` Crl.A.No.988 of 2008 ``` ``` 6 ``` seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory for comparison. 13. In Ext.P1, seizure mahazar, the detecting officer has not narrated the nature of the seal used. 14. 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. 15. 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. 16. 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 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 ``` Crl.A.No.988 of 2008 ``` ``` 7 ``` 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. 17. In the instant case, the prosecution has failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The forwarding note/requisition for sending the sample was not produced and marked to establish the tamperproof despatch of the sample. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 18. The learned counsel for the appellant/accused further contended that the arrest of the accused as alleged by the prosecution is doubtful in view of the fact that no arrest memo was prepared and produced before the Court. 19. In **D.K. Basu v. State of West Bengal M (1997 (1) KLT SN 54 (C. No. 71) SC : (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 ``` Crl.A.No.988 of 2008 ``` ``` 8 ``` 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 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 upon 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 ``` Crl.A.No.988 of 2008 ``` ``` 9 ``` prosecution has failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to the 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 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 doubtful. 22. 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. 23. 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 ``` Crl.A.No.988 of 2008 ``` ``` 10 ``` 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]}.** 24. The resultant conclusion is that the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above ``` Sd/- K.BABU JUDGE ``` VPK