Sasidharan Nair v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 13[TH] DAY OF JANUARY 2023 / 23RD POUSHA, 1944 ``` ``` CRL.A NO. 1433 OF 2008 ``` ## **`AGAINST JUDGMENT IN SC 36/2006 OF ADDITIONAL SESSIONS COURT`** # **`(ADHOC-I), PATHANAMTHITTA`** ## **`APPELLANT/1ST ACCUSED:`** ``` SASIDHARAN NAIR, KRISHNAVILASAM, MANKOOTAM, ANGADICKAL KIZHAKKU MURI, ENATHU VILLAGE. ``` ``` BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` 2SUB INSPECTOR OF POLICE, ADOOR POLICE STATION. ``` ``` BY ADVS. SMT.REKHA ,GP SRI.RAJESH SPL.GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1433 of 2006 2 ## . **K.BABU, J** ----------------------------------------- ## Crl.A.No.1433 of 2008 ------------------------------------------- Dated this the 13[th] day of January, 2023 ## **JUDGMENT** Aggrieved by the judgment dated 20.06.2008, passed by the Additional Sessions Court (Adhoc)-I, Pathanamthitta in Sessions Case No.36/2006 accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Section 8(2) 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 06.05.2004 at 9.00 p.m., the two accused (appellant and accused No.2) were found engaged in the sale of illicit arrack at Enathu 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, charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court Crl.A.No.1433 of 2006 3 for the aforesaid offence. 4. The prosecution examined PWs 1 and 5 and proved Exts. P1 to P5 and MOs 1 and 2 series. 5. After the closure of the evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder. Accused No.2 was acquitted. 6. Heard Sri. Vinoy Varghese Kallummoottil, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondents. 7. The judgment of conviction and sentence is challenged on the following grounds: - (a) The arrest of the appellant is found to be doubtful. - (b) The prosecution failed to establish that the contraband - allegedly seized from the place of occurrence eventually reached Crl.A.No.1433 of 2006 4 the Chemical Examiner’s Laboratory. 8. The prosecution case rests on the pleading that on 06.05.2004 at 9.00 p.m., the appellant/accused No.1 was arrested from the scene of occurrence along with the contraband substance. 9. The learned counsel for the appellant contended that the arrest of the accused as pleaded is doubtful in view of the non-production of the arrest memo as required. The arrest memo and arrest intimation were not produced and marked. 10. 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 Crl.A.No.1433 of 2006 5 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. 11. It is relevant to note that, in the instant case, 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. 12. 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 contraband has no existence without proving Crl.A.No.1433 of 2006 6 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. 13. The learned counsel for the appellant further contended that the prosecution has not succeeded in establishing that the contraband seized at the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions : - (a) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) There is nothing to show that the specimen of the seal was produced before the Court. - (c) The forwarding note/requisition for sending sample has not been produced and marked. 14. Ext.P1 is the seizure mahazar prepared at the scene of occurrence. The detecting officer has not narrated the nature and description of the seal used at the time of drawing the sample. There is no evidence to show that the specimen of the seal was produced before the Court at the time of the production of the Crl.A.No.1433 of 2006 7 properties, so as to prove the genuineness of the sample. The forwarding note/requisition for sending the sample has not been produced and marked. ## 15. 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. 16. 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. 17. 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 Crl.A.No.1433 of 2006 8 reached the Chemical Examiner's laboratory. 18. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 19. 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]}. 20. The prosecution has not succeeded in establishing that the contraband seized at the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P5, Certificate of Chemical Anaysis has no evidentiary value. 21. In the instant case, the prosecution failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The conviction and sentence recorded by the trial Court cannot be sustained. In the Crl.A.No.1433 of 2006 9 result, the appellant/accused No.1 is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the appellant/accused No.1 as per the interim order of this Court shall be disbursed to him. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK