Sasindran Achary v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** ## **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** **CRL.A.No. 673 of 2005 --------------------------** **AGAINST THE JUDGMENT IN SC 421/1999 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)I, KOLLAM DATED 17-12-2004** **CP 83/1998 of JUDICIAL MAGISTRATE OF SECOND CLASS-I, PARAVOOR** ## **APPELLANT/ACCUSED::** **SASINDRAN ACHARY, AGED 40 YEARS, S/O. KUTTAPPAN ACHARI, RESIDING AT KYLAS VEEDU NEAR PE NADA, NEDUMPANA VILLAGE, KOLLAM.** **BY ADVS.SRI.T.K.VENUGOPALAN SRI.HARISH GOPINATH** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE SUB-INSPECTOR OF POLICE, CHATHANNOOR POLICE STATION, CHATHANNOOR, KOLLAM.** **R1 BY PUBLIC PROSECUTOR SHRI K.,K. RAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 673 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kollam, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRL.A.673/2005 2 3. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Chathannur Police Station, and his party were on patrol at Nedumpana in Nedumpana Village, at about 8.00 p.m on 24-8-1998. While so, PW3 received reliable information that the appellant was selling illicit arrack at a place near the Ayurvedic Hospital, Nedumpana. Therefore, PW3 and his party reached that place when the appellant was seen standing there carrying a 10 litre black jerrycan in his right hand and a glass tumbler in his left hand. Seeing the Police party, the appellant made an attempt to flee away. But, the police party stopped him there. On examining the jerrycan carried by the appellant, about 3 litres of illicit arrack was found in it. Therefore, the appellant was arrested by PW3 then and there. PW3 had drawn about 300 ml. of arrack in a 375 ml. bottle as sample from the bulk contained in the jerrycan. Both the sample bottle and the jerrycan containing arrack were sealed. The CRL.A.673/2005 3 sample, jerrycan and the glass tumbler were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 reached Chathannur Police Station with the appellant and the contraband and registered Crime No. 256 of 1998 of that Police Station. Ext.P2 is the First Information Report thus prepared by PW3. He had produced the appellant and the contraband including the sample before the court. Ext.P3 is the List of Property produced by PW3 before the court. Ext.P4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. Ext.P5 is a report submitted by PW3 before the court showing the correct name and address of PW1. PW3 had questioned the witnesses and recorded their statements. PW4, the Sub Inspector of Police, Chathannur Police Station, verified the records of investigation and prepared the Final Report and submitted the same before the Judicial First Class Magistrate's Court, Paravur. CRL.A.673/2005 4 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kollam, and, from there, it was made over to the Principal Assistant Sessions Court, Kollam. Later, it was transferred to the Additional Sessions Court (Adhoc)-I, Kollam. The court below framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 5 and marked Exts.P1 to P5 and MOs. 1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was found not guilty of the CRL.A.673/2005 5 offence under Section 55(i) of the Abkari Act and hence, acquitted him of that offence. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that the appellant was found in possession of about 3 litres of illicit arrack in a 10 litre jerrycan and he was arrested from the place of occurrence itself and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses at 8.30 p.m. on 24-8-1998. CWs.1 and 2 were cited by the prosecution as independent occurrence witnesses. CW1 was examined as PW5 and CW2 was examined as PW1. Both of them did not support the prosecution case. They were declared hostile to the prosecution. PW3 is the Detecting Officer. PW2, a Police Constable, accompanied PW3 at the time of detection of the offence. PWs.2 and 3, by and large, deposed CRL.A.673/2005 6 supporting the prosecution version of occurrence. Whether their evidence can be relied on for entering a conviction against the appellant for a serious offence under Section 55 (a) of the Abkari Act is the question to be considered. 6. The case of the appellant is that he is totally innocent in this case and he was never arrested by PW3 from the place where the alleged occurrence took place or the contraband had been seized from him by PW3. It is stated in Ext.P1 Seizure Mahazar that the appellant was arrested from the place of occurrence itself. But, Ext.P1 is silent as to whether an Arrest Memo had been prepared by PW3 while arresting the appellant. Also silent about the Intimation of Arrest. PW3, while he was in the witness box, had no case that he had prepared an Arrest Memo. PW2 also did not say that the appellant was arrested preparing an Arrest Memo. Neither an Arrest Memo nor an Intimation of Arrest had been produced in this case. Those documents CRL.A.673/2005 7 could not be seen among the records of the case. The preparation of Arrest Memo and Intimation Memo are very significant in a case where the prosecution asserts that the accused was arrested from the place of occurrence with the contraband. 7. This Court in **Ramankutty v. Excise Inspector (2013(3)KHC 308),** dealing with the necessity of preparing Arrest Memo and Arrest Notice, has held as follows: “7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme CRL.A.673/2005 8 Court in _D.K.Basu v. State of West Bengal_ . The specific case of the prosecution is that the Revision petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in _D.K.Basu's_ case. It is apposite to have a look at the said directions of the Supreme Court which read as follows: “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 CRL.A.673/2005 9 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 memo of arrest is himself such a friend or a relative of the arrestee.” The prosecution has no case that they have complied the said directions. I am of the opinion that the non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum of arrest, beyond reasonable doubt.” CRL.A.673/2005 10 Therefore, in the case on hand, the non-preparation of Arrest Memo and non-service of Arrest Notice render the case of the prosecution that the appellant was arrested with the contraband from the place of occurrence a doubtful one. This view is strengthened by the fact that the Investigating Agency had not prepared a Scene Mahazar in this case. Therefore, the place of occurrence claimed by the prosecution also remains not properly proved in this case. 8. The contraband was allegedly seized by PW3 at 8.30 p.m. on 24-8-1998. But, he had produced the contraband with the sample and the glass tumbler before the court only on 3-10-1998 as evident from Ext.P3 List of Property. There is no dispute with regard to the fact that the properties were produced before the court only on 3-10-1998. Certain questions arise here. What was the reason for occurring such an inordinate delay in producing the properties before CRL.A.673/2005 11 the court ? PW3 did not offer any explanation at all for such an inordinate delay occurred in producing the contraband including the sample before the court. A Division Bench of this Court in **Ravi v. State of Kerala[2011(3)KLT 353]** laid down that there should be explanation for the delay when there is delayed production of the property. This Court in **Ramankutty v. Excise Inspector(supra)** found, for the reasons stated in that judgment, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, the unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 9. Where the properties were kept after they were allegedly seized by PW3 on 24-8-1998 till they were produced before the court on 3-10-1998 ? No evidence had been adduced by the prosecution in respect of that matter. CRL.A.673/2005 12 None of the excise officials examined by the prosecution gave any answer in respect of that matter. Moreover, there is no evidence as to under whose custody the properties were kept during the said period. In **Narayani v. Excise Inspector (2002 (3)KLT 725)** a learned single Judge of this Court observed as follows: “........In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98(no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out........” Therefore, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand also, such a benefit has to be extended to the appellant. CRL.A.673/2005 13 10. It is the prosecution case that PW3 had drawn a sample of about 300 ml. illicit arrack in a 375 ml. bottle from the bulk contained in the jerrycan and both the sample and the jerrycan containing the bulk were sealed. It is stated in Ext.P3 that the jerrycan containing the arrack and the sample bottle were sealed. PWs.2 and 3 deposed also that the sample and the jerrycan containing arrack were sealed. It is reported in Ext.P4 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample and the sample of liquid contained 47.35% by volume of ethyl alcohol. It is also noted in Ext.P4 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? PW3 or other excise officials examined in this case did not say about the filing of a Forwarding Note before the court. They did not say that the sample of the seal affixed on the sample bottle was sent to the Chemical Examiner's Laboratory for CRL.A.673/2005 14 the purpose of comparison. The Forwarding Note was not marked in this case. There is no evidence to show that a Forwarding Note was produced before the court. The property clerk or other official in the office of the court dealing with the Material Objects was not examined in this case. Therefore, there is no assurance that the comparison of the seal appearing on the sample bottle was made with a sample of that seal provided by the Investigating Agency. The comparison made can even be with the seal of the court. In such a circumstance, the statement made by the Chemical Examiner with respect to the comparison of the seal will not give any assurance that the sample of the contraband allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample was provided to the Chemical Examiner for comparison. Such a link evidence is missing in CRL.A.673/2005 15 this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample drawn from the bulk allegedly seized from the appellant in this case. 11. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows : “....... The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the CRL.A.673/2005 16 contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” This Court in **Ravi v. State of Kerala (supra)** has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, for these reasons, Ext.P4 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. CRL.A.673/2005 17 12. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an oder of acquittal of the offence alleged against him. 13. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. **Sd/BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.) To Judge CRL.A.673/2005 18 The learned Magistrate, after complying with the required legal formalities, committed the case to Court of Session, Kollam and, from there, it was made over to the Principal Assistant Sessions Court, Kollam. Later, it was transferred to the Additional Sessions Court (Adhoc)-I, Kollam. The court below framed a charge against the appellant alleging the offence under Sections 55(a) and (i) of the Abkari Act. The appellant has pleaded not guilty of CRL.A.673/2005 19 the charge. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P5 and M.Os 1 and 2 on their side. The appellant was examined under Section 313 of the Code of Criminal Procedure. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(i) of the Abkari Act and hence he was acquitted of that offence. The appellant was heard on the question of sentence and imposed the sentence on him.