Roy Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944** **CRL.A NO. 755 OF 2007** **AGAINST THE JUDGMENT DATED 12.04.2007 IN SC 126/2001 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA** ## **APPELLANT:** ROY VARGHESE, S/O VARGHESE, PAYYAMBALLY (H), WYNAD DISTRICT. BY ADVS. SRI.M.ASOKAN DEVAPRASANTH.P.J. ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY SHO, MANANTHAVADY POLICE STATION,, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY ADV PUBLIC PROSECUTOR SMT.REKHA.S- SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeeal No.755 of 2007** 2 **K.BABU, J** . ---------------------------------Criminal Appeal No.755 of 2007 ---------------------------------- **Dated this the 15[th ] day of June, 2022** ## **JUDGMENT** Aggrieved by the judgment dated 12.04.2007 passed by the Additional Sessions Court (Adhoc-II), Kalpetta in Sessions Case No.126/2001 the appellant/accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) 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 01.05.1999 at 4.00 pm, the appellant/accused was found in possession of 6 bottles of Indian Made Foreign Liquor at Mananthavady 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 55(a) 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 charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused **Crl.Appeeal No.755 of 2007** 3 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 5 and proved Exts.P1 to P8 and MO1 series. 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 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri.M.Asokan, 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 challenges the conviction and sentence on the ground that the prosecution failed to establish that the contraband substances allegedly seized from the place of occurrence eventually reached the laboratory. The defence also challenges the factum of arrest of the accused. **Crl.Appeeal No.755 of 2007** 4 8. The arrest and seizure were effected on 01.05.1999. PW5, the then SI of Police, Mananthavady detected the offence. According to PW5, the accused was arrested along with the contraband substances around 04.00 PM from the place of occurrence. The contention of the defence is that the accused was not arrested as pleaded. The learned counsel challenged the facutm of arrest on the ground that the presence of the crime number in Ext.P4 arrest memo is doubtful. While considering a similar fact situation this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] held as follows: “ _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_ **Crl.Appeeal No.755 of 2007** 5 _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 (4) KLT 188 = 2020 (3) KHC 715)]”_ 9. In the absence of satisfactory explanation offered by the prosecution with regard to the presence of the Crime Number in Ext.P4 arrest memo, a doubt arises in the manner in which seizure and arrest were effected. 10. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution failed to establish the genuineness of the sample analyzed in the laboratory: (a) The inordinate delay in the production of the properties including the sample has not been satisfactorily explained. (b) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. (c) The custody of the sample during its transit from the place of occurrence to the laboratory through Court has not been established. **Crl.Appeeal No.755 of 2007** 6 11. Though the seizure mahazar was prepared on 01.05.1995, the properties, including the sample, reached the Court only on 27.05.1999. The prosecution has not offered any explanation for the delay in the production of properties including the sample before the Court. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121], on the question of delay in production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 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) 12. 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. 13. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay **Crl.Appeeal No.755 of 2007** 7 in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 14. Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. PW5, the detecting officer has not given evidence as to the nature of the seal used. The specimen seal was not produced before the Court and marked. 15. The sample remained in the custody of the property clerk of the Court till 21.10.1999. The bottles containing the sample were forwarded to the laboratory on 21.10.1999 through a Police Constable No.1232. This Police Officer delivered the sample in the laboratory on 22.10.1999. The property clerk of the Court and the Police Constable who delivered the sample in the laboratory were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution has not succeeded in proving that the sample was transferred to the laboratory in a tamper-proof condition. 16. 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 **Crl.Appeeal No.755 of 2007** 8 sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 17. 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 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. 18. 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 **Crl.Appeeal No.755 of 2007** 9 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 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). 19. 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. 20. 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 **Crl.Appeeal No.755 of 2007** 10 sample, no evidentiary value can be attached to the Chemical Analysis Report. 21. 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. 22. In the instant case, the prosecution has not succeeded in proving that the contraband substances allegedly seized from the place of occurrence was subjected to analysis in the laboratory. 23. The upshot of the above discussion is that the conviction and sentence passed 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** AJ/15.06.2022