Saji, S/o Krishnan Kutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942** ## **CRL.A.No.1085 OF 2007** **AGAINST JUDGMENT IN SC 87/2006 DATED 29-05-2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** **APPELLANT/ ACCUSED :** **SAJI, S/O.KRISHNAN KUTTY, VADAKKEKARA VEETTIL, EDAMARUKU KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT :** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.105 OF 2004 OF KARIMANNOOR POLICE STATION).** **BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1085 OF 2007** 2 ## **JUDGMENT** Dated this the 16th day of December 2020 The appeal is against the judgment dated 29.5.2007 in S.C. No.87 of 2006 on the files of the Additional Sessions Court (Adhoc-II), Thodupuzha. By the impugned judgment, the accused was found guilty for the offence under Section 8(2) and Section 55(i) of the Abkari Act (for short, 'the Act') and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 8(2) of the Act. No separate sentence for the offence under Section 55(i) was imposed. 2. The prosecution alleged that on 5.6.2004 at 12.35 pm, the accused was found in possession of 1.275 litres of arrack kept in the tea shop of the accused in four bottles. Consequent to arrest of the accused and taking the samples after seizure of the contraband, Crime No.105 of 2004 was registered at Karimannur Police Station. After completing the investigation, the report was filed alleging offence committed under Section 8(2) and Section 55(i) of the Abkari Act, 1077. The learned Magistrate committed the case for trial to the court **CRL.A.No.1085 OF 2007** 3 of Sessions. 3. In order to prove the prosecution case, PWs 1 to 8 were examined and Exts.P1 to P9 were marked. The defence examined DW1 and marked Ext.D1 being the portion of CD statement of CW1. The material objects were marked as MO1 and MO2. MO1 bottle was having a capacity of 375 ml but contained 150 ml of liquor, while MO2 was another 375 ml of bottle allegedly containing liquor to the brim. 4. After analysing the the prosecution evidence as well as those adduced by the defence, the learned Sessions Judge found the accused guilty for the offence under Section 8(2) as well as Section 55(i) of the Act and convicted him. He was sentenced for the offence under Section 8(2) and no separate offence was imposed under Section 55(i) of the Act. 5. Adv.Vinay V., learned counsel for the appellant assails the impugned judgment and contends that this is a classic instance of false implication of the accused in an offence under the Act, which is evident from Ext.P7 arrest memo. He relies upon the decision in **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and Another** (2020 (3) KHC 715) to drive home the point that the prosecution case becomes doubtful on account of the arrest memo containing the crime number. Learned counsel further **CRL.A.No.1085 OF 2007** 4 submitted, referring to two unreported judgments of this Court in Crl.Appeal No.698 of 2005 and Crl.R.P. No.2676 of 2004, that the specimen signature having not been affixed in Ext.P3 search list is detrimental to the prosecution case. He further submitted that the material object is also not worthy of belief, since, sample of MO1 and MO2 was never subjected to any analysis, in the absence of which the prosecution case has no basis. 6. The learned Government Pleader Smt.Rekha C.Nair controverted the aforesaid submissions and submitted that inclusion of crime number in the arrest memo was obviously done after the crime was registered and the same is not indicative of a false implication but is only a subsequent act confined only to the inclusion of the crime number in the column provided and nothing else. She also submitted that the sample impression of seal is not required by law to be affixed in the search list or in any other document, except the forwarding note and since the forwarding note involved in the case contains the sample impression, the same was sufficient to complete the link connecting the sample seized to those sent for analysis. She further submitted that four bottles were seized from the accused and two of the bottles have been subjected to chemical analysis and as per the report of the chemical analysis produced as Ext.P9, the sample sent for analysis **CRL.A.No.1085 OF 2007** 5 contained ethyl alcohol at 13.76% and 7.6% respectively. 7. I have considered the rival contentions. A reading of Ext.P7 arrest memo shows that Column No.3 for specifying crime number, if any, at the time of arrest contains the entry 105/04. Ext.P7 also contain the inspection memo, wherein also, the crime number is seen incorporated and the date and time of arrest is shown as 05.06.2004 at 12.35 p.m. Ext.P4 FIR specifies the date as 05.06.2004 and the time as 3.00 p.m. In other words, as argued by Adv.Vinay V., at the time the arrest was recorded in the instant case, no crime had been registered. The inclusion of crime number in the arrest memo prepared by the Detecting Officer at the scene of occurrence is not explained by the prosecution. Though an attempt was made by the learned Public Prosecutor to explain the inclusion of such a crime number in the arrest memo, I cannot pay any heed to the said explanation since PW2 did not have any such explanation during his deposition. 8. The effect of non-explanation by the Detecting Officer of the presence of the crime number in the arrest memo gives rise to two inferences. (i). The First Information Report was recorded prior to the alleged detection, recovery of the contraband and arrest of the accused or (ii) that the number of the crime was inserted after it was **CRL.A.No.1085 OF 2007** 6 registered as sought to be explained by the learned Public Prosecutor. 9. In both instances, this Court has already held in the decision in _**Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and Another [2020 (3) KHC 715]**_ that the case of the prosecution would be doubtful especially as regards the recovery of the contraband in the manner alleged by the prosecution. The following observations in the aforesaid decision is relevant :- _21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner aleged by the prosecution (See Zofar v. State (2000 KHC 2209 : 2000 CriLJ 1589), Kailash @ Kuddu v. State (2000 KHC 2334 : 2000 CriLJ 2134) and Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017 (1) KLD 48). When 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, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See Shyam Bharia v. State of Madhya Pradesh_ **CRL.A.No.1085 OF 2007** 7 _(2005 KHC 2690 : 2005 CriLJ 1907). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See K.Kalyani v. State (MANU/TN/1070/2019).”_ 10. In view of the above, I find great force in the submission of the learned counsel for the appellant that the prosecution case cannot be believed in _toto_ . 11. Yet another interesting and curious aspect pointed out by the learned counsel for the appellant is that the contraband article seized in the case and produced before the court was not subjected to a chemical analysis. What are the contents of the contraband article remains unknown from the evidence adduced by the prosecution. It is true that, what was sent for chemical analysis, are not samples from the material objects produced and marked in court, as MO1 and MO2. Two bottles of alleged contraband article containing the entire contraband was sent for analysis while two other bottles allegedly containing contraband was produced and marked in court. Thus, what was produced before the court were two of the remaining bottles from amongst the four alleged contraband bottles that were seized. PW2 admits that from MO1 and MO2, no samples were taken. In other words, what was subjected to an analysis was not a sample taken from the material objects produced in court and what was produced in **CRL.A.No.1085 OF 2007** 8 court was not subjected to any chemical analysis. Unfortunately the prosecution failed to produce any substantive evidence before the court to prove that the sample was taken from the material objects seized and that sample was subjected to chemical analysis which revealed the presence of ethyl alcohol to a particular quantity. In the absence of any substantive evidence to prove that the material objects produced before the court contained any quantity of ethyl alcohol, this Court cannot find the accused guilty of any offences. 12. The cumulative effect of the above findings shows that the prosecution has miserably failed to prove the guilt of the accused to any extent. In such circumstances, it is unnecessary for this Court at this juncture to consider the question as to whether the absence of specimen signature in Ext.P3 search list is a material omission creating dent in the prosecution case or not. I leave the said question open to be considered in an appropriate case. Accordingly, this appeal is allowed by setting aside the conviction and sentence passed against the appellant in SC.No.87/2006 on the files of the Additional Sessions Court (Ad hocII), Thodupuzha. The accused is found not guilty for the offence under Sections 8(2) & 55(i) of the Act and he is acquitted. The bail bond executed by him, if any, shall stand cancelled and he is set at liberty. **CRL.A.No.1085 OF 2007** 9 The fine amount, if any remitted by the accused shall be refunded at the earliest. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM