SAHADEVAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944** **CRL.A NO. 2319 OF 2008** **AGAINST JUDGMENT IN S.C.NO.987/2007 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)** **FAST TRACK COURT NO.I, THRISSUR DATED 23.09.2008** ## **APPELLANT/ACCUSED:** **SAHADEVAN, S/O NARAYANAN, AMBATTUPARAMBAN HOUSE,, KODASSERY VILLAGE, THACHUR DESOM,** **BY ADV SRI.A.C.DEVY** ## **RESPONDENT/STATE:** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI -31.** ## **OTHER PRESENT:** **SMT. REKHA.S. (SR.PP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2319 of 2008** **2** ## **JUDGMENT** **Dated this the 26[th] day of May, 2022** Aggrieved by the judgment dated 23.09.2008 passed by the Additional Sessions Court (Adhoc) Fast Track Court No.1, Thrissur in Sessions Case No.987/2007, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 05.05.2005 at about 1.00 p.m., the accused was found in possession of 1.5 litres of arrack at Manalayi. 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 **CRL.A.No.2319 of 2008** 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 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 6 and proved Exts P1 to P9 and MO1. 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. The accused was sentenced **CRL.A.No.2319 of 2008** **4** to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.1 lakh under Section 8(2) of the Abkari Act. 6. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- - (a) The prosecution failed to establish the arrest of the accused on the date of occurrence which formed the foundation of the prosecution case. - (b) The prosecution failed to establish that the contraband articles allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 7. The prosecution allegation is that on 05.05.2005, the appellant/accused was arrested, while he was carrying a can containing 1.5 litres of arrack, near the house of one Kunhuvareed, at Manalayi Desom. The prosecution alleges that, the Excise Preventive Officer, Excise Circle Office, Irinjalakuda (PW1) arrested the accused from the place of **CRL.A.No.2319 of 2008** **5** occurrence. 8. The defence challenges the arrest of the accused as alleged. In _**D.K.Basu v. State of West Bengal [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 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 **CRL.A.No.2319 of 2008** **6** memo of arrest himself is such a friend or relative of the arrestee. 9. It is relevant to note that, in the instant case, the 'arrest memo' and 'arrest intimation' have not been placed before the Court. The prosecution has no case that '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 ground. 10. 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 **CRL.A.No.2319 of 2008** **7** 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. 11. The genuineness of the contraband substance produced before the Court is also under challenge on the ground that the detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottles containing the sample in Ext.P1 seizure mahazar. PW1, the detecting officer has also not given evidence as to the nature and description of the seal used by him. 12. 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 **CRL.A.No.2319 of 2008** **8** the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 13. The prosecution also failed to ascertain the name of the officer with whom the bottle containing the sample was forwarded to the Chemical Examiner's laboratory. 14. Ext.P6, the copy of the forwarding note, does not contain the name of the person with whom the sample was forwarded to the laboratory. The learned Magistrate did not mention the date on which he made initials thereon. This is more relevant particularly when the name of the official with whom the sample was sent for analysis is not mentioned. 15. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], ## held thus: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise_ **CRL.A.No.2319 of 2008** **9** _Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court - or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 16. The learned counsel for the appellant/accused further contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by different officials. The sample remained in the custody of the property clerk of the Court. The sample was handed over to **CRL.A.No.2319 of 2008** **10** an Excise official. An Excise guard by name Kunjahammed produced the sample in the Chemical Examiner's laboratory. These witnesses were not examined by the prosecution. Non-examination of these officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in _**State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)].**_ 17. In the present case, the prosecution failed to establish that the contraband allegedly seized from the place of occurrence reached the Court in a tamper-proof condition and it was the same sample that eventually reached the Chemical Examiner's laboratory. 18. The resultant conclusion is that Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 19. The upshot of the above discussion is that the prosecution failed to establish the charge against the appellant/accused. The conviction entered by the Court **CRL.A.No.2319 of 2008** **11** below overlooking the above vital aspects of the matter cannot be sustained. The appellant/accused is therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. **Sd/K.BABU Judge** NR/26/05/2022