Reji and Anr v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 ``` ``` CRL.A NO. 2312 OF 2009 ``` ## **`AGAINST THE ORDER/JUDGMENT CP 1/2008 OF JUDICIAL MAGISTRATE OF`** ``` FIRST CLASS ,KOTTAYAM ``` ## **`SC 278/2008 OF ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM APPELLANT/S:`** ``` 1REJI AND ANOTHER VEEDU, 16TH CHIRA BHAGAM,VELOOR KARA,, VELOOR VILLAGE. 2JOSEPH JOSESO.JOHNPARASSERIL VEEDU PADINJATTUMCHERI KARA,ATHIRAMPUZHA. BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA,REP.BY P.P.,H.C.OF KERAL PUBLIC PROSECUTOR,HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` REKHA,GP; RAJESH.A SPL.GP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.2312 of 2009 2 ## . **K.BABU, J** ----------------------------------------- ## Crl.A.No.2312 of 2009 ------------------------------------------Dated this the 14[th] day of December, 2022 ## **JUDGMENT** This appeal arises from the judgment dated 30.10.2009 in S.C.No.278/2008 on the file of the Additional Sessions Court (Adhoc-I), Kottayam. Accused Nos. 2 & 4 are the appellants. The appellants were convicted under Sections 55(a) and 55(i) of the Abkari Act and Sections 483 and 484 of IPC and sentenced to undergo rigorous imprisonment for 7 years each and a fine of Rs.Two Lakhs each. ## P rosecution case 2. On 25.10.2000, the SI of Police, Kottayam (PW13) searched the premises of the Deepa Wines, a licenced Foreign Liqour Shop functioning in building No.IX/542 at Kottayam. The detecting officer seized 2074 bottles of Indian Made Foreign Liquor unauthorizedly kept there. Those bottles of Indian Made Foreign Liquor did not have the stickers of the Beverages Corporation. The bottles were found transported to Kerala for the purpose of cheating and defrauding the Government and making undue profit. Accused Nos. 4 to 9 were arrested from the place of occurrence. The licencee of the shop was implicated as accused Crl.A.No.2312 of 2009 3 No.1. Accused Nos. 2 to 4 were impleaded alleging that they were conducting the shop for and on behalf of accused No.1. PW 13 registered Ext.P3 - FIR alleging offences punishable under Sections 55(a) and 55(i) of the Abakri Act and Sections 468, 469, 471, 483, 420 r/w 34 of IPC. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abakri Act and Sections 468, 469, 471, 483, 420 r/w 34 of IPC before the Judicial First Class Magistrate Court-I, Kottayam. The case was committed to the Sessions Court, Kottayam, from where it was made over to the Trial Court. 4. Accused Nos. 2 to 11 faced trial. Charges were framed against them for the offences punishable under Sections 468, 471, 484, 485 r/w 34 of IPC and Sections 55(a) and 58 of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the Trial Court for the aforesaid offences. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P18 and MOs 1 to 14 series. 6. After the closure of the prosecution evidence, the matter was heard under Section 232 of Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their evidence and adduce evidence, if any, they may have in Crl.A.No.2312 of 2009 4 support thereof. The Trial Court found accused Nos. 2 and 4 guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act and Sections 483 & 484 of IPC and they were convicted thereunder. 7. Heard the learned counsel for the appellants/accused Nos.2 & 4 and the learned Senior Public Prosecutor. 8. The learned counsel for the appellants challenges the judgment of conviction and sentence on the following grounds: - (a) The prosecution failed to establish that the liquor allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laborotary. - (b) The arrest of accused No.4 is doubtful. - (c) The prosecution has not succeeded in establishing the ingredients of the offences punishable under Sections 483 & 484 of IPC. 9. The alleged seizure was effected on 25.10.2000. PW13, the Investigating Officer stated that he had prepared the property list on 30.10.2000. He was not sure as to the date on which the properties including the sample were produced before the Court. While examined in cross, PW13 admitted that, the properties were produced before the Court only on 12.01.2001. He added that the properties were in his safe Crl.A.No.2312 of 2009 5 custody till then. The inordinate delay in the production of the properties including the sample before the Court has not been satisfactorily explained by the prosecution. 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 as follows: _“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.PC 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. The prosecution has not given evidence as to whether Crl.A.No.2312 of 2009 6 the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory. The requisition for sending the sample/forwarding note has not been produced and marked. There is nothing to show that the specimen of the seal was forwarded to the laboratory to ensure the genuinesses of the sample produced for examination. 13. 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. 14. 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 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. 15. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the Crl.A.No.2312 of 2009 7 possession of the accused eventually reached the Chemical Examiner’s Laboratory in a tamper proof condition. 16. The failure of the prosecution to establish that the liquor allegedly seized from the place of occurrence was analysed in the Chemical Examiner’s Laboratory in view of the above referred discrepancy renders the Certificate of Chemical Analysis not credible. Ext.P18, Certificate of Chemical Analysis cannot be relied upon to enter into a conclusion that the appellants/accused Nos. 2 & 4 had possessed the liquor analysed in the Chemical Examiner’s Laboratory. 17. The arrest of accused No.4 is also under challenge. 18. 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 Crl.A.No.2312 of 2009 8 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. 19. It is relevant to note that, in the case of accused No.4, 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 prosecution has failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to the ground as against accused No.4. 20. 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 Crl.A.No.2312 of 2009 9 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. 21. The further case of the prosecution is that the accused counterfeited labels of the ‘Island XXX Rum’ and stickers of KSBC having the signature of the Excise Commissioner. It is alleged that the appellants were in possession of forged security stickers issued by the Excise Commissioner and they were allegedly found in possession of 4000 forged labels of ‘Island XXX Rum’. They were also allegedly found in possession of forged stickers of K.S.B.C. having the signature of the Excise Commissioner. According to the prosecution, the forged stickers were kept for defrauding the Government and the K.S.B.C. 22. PW2 gave evidence that he had seized MO7 series and MO 8 series ‘sticker sheets’ from the shop. He also seized 4000 ‘Island XXX Rum’ labels from the shop. Based on the seizure of MO7 series, MO8 series and MO9 series the prosecution set up its case that those ‘sticker sheets’ and labels were counterfeited by accused Nos. 2 and 4. The prosecution relied on the oral evidence of the PW2 to establish Crl.A.No.2312 of 2009 10 the allegation of counterfeiting of property marked as stated. As per Section 28 of the IPC, _A person is said to “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised._ 22. The main ingredients of counterfeiting as defined in Section 28 of IPC are as follows: - (i) causing one thing to resemble another thing. - (ii) intending by means of such resemblance to practice deception, or - (iii) knowing it to be likely that deception will thereby be practised. 23. The primary responsibility of the prosecution to establish the act of counterfeiting is that MOs 7 series, 8 series and 9 series, stickers and labels respectively are not genuine or original stickers or labels. Then the case of the prosecution that appellants/accused caused or created MOs 7 and 8 series stickers and MO9 series to resemble the original would not stand. In the present case, the stickers or labels were not sent for examination. The custodian or the competent authority to identify the same as counterfeited or not genuine were not examined. Therefore, the prosecution essentially failed to establish the offence of counterfeiting as required under Crl.A.No.2312 of 2009 11 Sections 483 and 484 of the IPC. The necessary conclusion is that the prosecution failed to establish the offences punishable under Sections 483 and 484 of IPC. 24. The learned counsel for the appellants also contended that, as the prosecution failed to establish the arrest of accused No.4, his participation in the offence of counterfeiting could not be inferred. 25. The resultant conclusion is that the prosecution failed to establish the link connecting the accused with the liquor allegedly seized from the shop and also the prosecution failed to prove the offence of counterfeiting. The conviction and sentence therefore cannot be sustained. Accused Nos.2 & 4 are acquitted of the offences alleged. The appeal is allowed as above. Sd/- **`K.BABU JUDGE`** VPK