Salim v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944** ## **CRL.A NO. 943 OF 2008** **AGAINST THE JUDGMENT IN SC 349/2007 OF ADDITIONAL SESSIONS COURT** **(ADHOC-II), THODUPUZHA** ## **APPELLANT/ACCUSED:** SALIM, KOZHYOTTU VEEDU, THOTTAPPURA BHAGOM, KALLARKUTTY KARA, VELLATHOOVAL VILLAGE. BY ADV SRI.P.M.ZIRAJ ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM REPRESENTED BY SUB INSPECTOR, ADIMALY POLICE STATION. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.943 of 2008 2 K.BABU, J. -------------------------------------Criminal Appeal No.943 of 2008 --------------------------------------Dated this the 27[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 17.04.2008, passed by the IV[th] Additional Sessions Court (Adhoc-II), Thodupuzha in S.C.No.349/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 8(2) and 55(i) 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 29.07.2006 at 7.00 p.m, the accused was found in possession of 375 ml. of arrack in a bottle for the purpose of sale at Kallarkutty, 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 8(2) 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, Crl.A No.943 of 2008 3 charges were framed against him for the offences punishable under Sections 8(2) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 and MOs 1 to 4 . 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard Sri. P.M.Ziraj, 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/accused challenged the judgment of conviction and sentence on the following grounds: Crl.A No.943 of 2008 4 - (i) The arrest as pleaded by the prosecution is doubtful. - (ii) The prosecution failed to establish that the contraband substance seized from the possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure and arrest were effected on 29.07.2006 by the Junior Sub Inspector of Police, Adimaly. 9. The learned counsel for the appellant disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P2 arrest memo to contend that the arrest of the accused at the spot is doubtful. Exhibit P2 contains the number of crime (246/2006) registered against the accused. While dealing with a similar fact situation, this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus: “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. Crl.A No.943 of 2008 5 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 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)]” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance seized from the place of occurrence was examined in the Chemical Examiner's Laboratory: - (a) The specimen of the seal was not produced before the Trial Court. - (b) Exhibit P1 seizure mahazar, the contemporaneous document, prepared at the scene of occurrence does not contain the Crl.A No.943 of 2008 6 nature and description of the seal stated to have been affixed on the bottle containing the sample. - (c) Exhibit P5 forwarding note does not contain the specimen of the seal used by the detecting officer. 12. I have gone through Ext.P1 seizure mahazar, it does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. There is no evidence to show that the specimen of the seal was produced before the Court to ascertain the genuineness of the properties, including the sample, produced before the Court. Exhibit P5 forwarding note does not contain the specimen of the seal used. The space meant for incorporating the specimen seal is left vacant 13. In Bhaskaran K. v. State of Kerala and another (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 Crl.A No.943 of 2008 7 Court. 14. 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. 15. In the absence of any evidence to the effect that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for ascertaining the genuineness of the sample placed for analysis, the necessary conclusion is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. Moreover, the officials who handled the sample during its transit from the Court to the laboratory were also not examined to rule out the possibility of the sample being changed or tampered with [Vide: State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)]. 16. In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the possession of Crl.A No.943 of 2008 8 the accused was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 17. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 18. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 19. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link Crl.A No.943 of 2008 9 ## evidence as discussed above. 20. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS