Reghukumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.1229 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 726/2006 DATED 28-06-2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** ## **APPELLANT/S/ACCUSED:** **REGHUKUMAR, S/O. KUMARAN, REGHUVILASOM, PADIJATTUMKKIZHAKKU, SOORANADU NORTH VILLAGE, KOLLAM.** ## **BY ADV. SRI.JOHNSON GOMEZ** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE,** **SOORANADU POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SMT.V.SREEJA, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1229 OF 2007** **2** ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act. 2. The is that on prosecution allegation 27.08.2003 at about 5.30 p.m., the appellant was found in possession of 3 litres of arrack in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned Counsel for the appellant has argued that since no forwarding note was produced or marked in this case, the appellant is entitled to benefit of doubt. **CRL.A.No.1229 OF 2007** **3** 5. It appears that no forwarding note was marked in this case. However, the copy of the forwarding note is available with the records transmitted to this Court. The said copy of the forwarding note would show that the sample seal was not affixed on it. 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the **CRL.A.No.1229 OF 2007** **4** appellant”. 7. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper-proof condition. 8. In Krishnan H. v. State [2015 (1) KHC 822], the court held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not affixed on the original forwarding note. 9. In this case, no evidence was adduced by the **CRL.A.No.1229 OF 2007** **5** prosecution to prove that the sample seal was affixed on the original forwarding note. Therefore, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. Consequently, there is no link evidence connecting the appellant with the sample analysed in the laboratory. In the said circumstances, the appellant is entitled to benefit of doubt. 10. There is yet another reason to grant benefit of doubt to the appellant. In this case, no arrest memo **CRL.A.No.1229 OF 2007** **6** was produced and proved by the prosecution. PW3 stated that PW3 arrested the appellant on 27.08.2003 at about 5.30 p.m. along with the contraband. However, no arrest memo was proved by PW3. The evidence of PW3 in cross-examination would make it clear that he informed the near relatives of the appellant about the arrest of the appellant only on 28.08.2003. This would show that the intimation about the arrest was not given to the near relatives by PW3 immediately after the arrest. 11. This court in Ramankutty v. Excise Inspector [2013(3) KHC 308] held that the arrest memo is a crucial document to be prepared at the time of arrest and the non-production thereof is fatal to the prosecution case. The court further held that if the **CRL.A.No.1229 OF 2007** **7** arrest is not proved beyond reasonable doubt, the entire case built up by the prosecution would fall to ground. In this case, since the entire case built up by the prosecution rests on the allegation that the appellant was arrested with the contraband, it was the duty of the prosecution to prove the arrest of the appellant beyond reasonable doubt. For that purpose, the arrest memo should have been produced and proved by the prosecution. However, the arrest memo was not produced and proved by the prosecution. Therefore, the arrest of the appellant could not be proved by the prosecution. Since the arrest of the appellant could not be proved beyond reasonable doubt in this case, the entire case built up by the prosecution would fall to ground and consequently, the appellant is entitled to benefit of doubt on that ground as well. **CRL.A.No.1229 OF 2007** **8** In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. **SD/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/02.12.2020