Ramesan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** **CRL.A NO.254 OF 2007** **UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE AGAINST JUDGMENT DATED 20.12.2006 ON SESSIONS CASE NO.2000/2001 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT (ADHOC) NO.II, THIRUVANANTAHPURAM.** **C.P. NO.84/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL.** **ARISING OUT OF CRIME NO.202/2000 OF CHIRAYINKEEZHU POLICE STATION.** ## **A PPELLANT:** **RAMESAN, KALIYILTHITTA VEEDU, VALIA ELA, KOONTHALLOOR DESOM, KIZHUVILAM VILLAGE.** **BY ADVS.SRI.M.R.RAJESH SMT.BINDHYA JOSE SMT.A.K.PREETHA** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHIRAYINKEEZHU REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **SMT. REKHA S., SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **CRL.A NO.254 OF 2007** ## **JUDGMENT** This appeal arises from the judgment passed by the Additional Sessions Court Fastrack (Adhoc) No.II, Thiruvananthapuram in Sessions Case No.2000/2001. The appellant herein is the accused No.1. During the course of proceedings, the appellant died. 2. This appeal was dismissed by this Court as per judgment dated 06.03.2014. 3. The wife of the appellant Smt. Girija A., challenged the judgment dismissing the appeal before the Supreme Court in Crl.Appeal No.77/2020. The Apex Court, as per judgment dated 21.01.2020, set aside the judgment of this Court dated 06.03.2014 and remanded the matter to this Court for hearing afresh, after giving opportunity to the legal heirs of the accused. 4. Adv. Sandhya E.S. appeared for the daughter of the accused. 5. Heard the learned counsel on both sides. 6. The prosecution case is that, on 13.12.2000 at about 11.25 p.m., the appellant/accused No.1 and the other accused were found engaged in manufacturing illicit arrack for the purpose of sale at Kaliyilthitta House owned and possessed by the appellant/accused -3- **CRL.A NO.254 OF 2007** No.1 in Kizhuvilam Village. Accused No.1 was arrested from the scene. 7. The final report was submitted against the appellant/accused No.1 and the other accused. On their appearance before the trial Court and charges were framed under Sections 55(a) and 55(g) of the Kerala Abkari Act. They pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 8. PWs1 to 5 were examined and Exts.P1 to P7 and MO1 to MO4 were marked on the side of the prosecution. 9. After the conclusion of the trial, the trial Court found accused No.1 guilty of the offences punishable under Sections 55(a) and 55(g) of the Abkari Act. Accused No.2 was acquitted of the offences alleged. 10. The judgment of conviction and sentence is under challenge on the following grounds:- - (1) The arrest of the accused at the scene of occurrence is doubtful. (2) The prosecution has not succeeded in establishing that the contraband substances allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. -4- **CRL.A NO.254 OF 2007** 11. The learned counsel for the appellant contended that the arrest of the accused, as pleaded by the prosecution, is doubtful on the ground that the crime number is found in Ext.P2 arrest memo. While dealing with a similar factual situation, this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus:- “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020(3) KHC 715)].” -5- ## **CRL.A NO.254 OF 2007** 12. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 13. The properties, including the sample, remained in the custody of the property clerk of the Court till 25.04.2001. The sample was delivered in the laboratory by a Police Constable No.6095. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed/tampered with. 14. It is contended that the prosecution has not proved that the specimen of the seal stated to have been affixed on the bottle containing the sample was forwarded to the chemical examiner for verification. Ext.P6 is the copy of the fowarding note/requisition for sending sample to the Laboratory. In Ext.P6, the space meant for incorporating the specimen seal is left vacant. The necessary inference is that the specimen of the seal was not forwarded to the Chemical Examiner's Laboratory for verification. 15. 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 -6- **CRL.A NO.254 OF 2007** sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 16. A legal obligation is cast on the prosecution to prove that it was 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 the contraband reaches the laboratory is required to be established by the prosecution. 17. 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 Rajastan v. Daulath 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 -7- ## **CRL.A NO.254 OF 2007** 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. 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 (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] . 18. 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. 19. 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 -8- ## **CRL.A NO.254 OF 2007** sample, no evidentiary value can be attached to the Chemical Analysis Report. 20. Another aspect to be considered is the delay in the analysis of the sample. The sample reached the Laboratory on 25.04.2001. The sample was subjected to analysis only on 12.11.2001. There is no satisfactory explanation for the delay in the analysis of the sample. On the question of delay in the analysis of the sample, in Krishnadas v. State of Kerala [2019 KHC 191] , this Court held thus:- “Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.09.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.07.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 21. In the present case, the delay in the analysis has not explained by the prosecution. -9- ## **CRL.A NO.254 OF 2007** 22. In the absence of any evidence to show that the contraband substances seized at the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 23. The prosecution, therefore, failed to establsh the link connecting the accused with the contraband substances. 24. Resultantly, the conviction recorded by the Court below cannot be sustained. The conviction and sentence passed against the accused therefore stand set aside. The appellant/accused No.1 is acquitted of the charges. If any amount is deposited by the accused, as per the directions of this Court, it shall be disbursed to Smt. Girija A., the wife of the accused. The appeal is allowed as above. Sd/- **K. BABU JUDGE** bpr