SATHEESAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** ## **CRL.A NO. 910 OF 2008** **AGAINST THE JUDGMENT IN SC 309/2006 OF ADDITIONAL SESSIONS COURT,** ## **ADHOC-I, THALASSERY** ## **APPELLANT/SOLE ACCUSED/PETITIONER:** SATHEESAN, S/O BALAN, KUNJIPARAMBATH HOUSE, KAKKATT AMSOM, VATTOLI DESOM,KOZHIZKODE DISTRICT. BY ADV SRI.G.SREEKUMAR (CHELUR) ## **RESPONDENT/STATE OF KERALA/RESPONDENT:** STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHOKLI POLICE STATION, THORUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.910 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.910 of 2008 --------------------------------------Dated this the 28[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 03.05.2008, passed by the Additional Sessions Court, Adhoc-I, Thalassery in S.C.No.309/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 06.12.2004 at 5.35 p.m, the accused was found transporting 6 bottles each containing 180 ml of Indian Made Foreign Liquor at Kanjirathinkeezhil, 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 55(a) 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.910 of 2008 3 charge was framed against him for the offence punishable under Section 55(a) 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 4 and proved Exts.P1 to P9. 5. After the closure of the prosecution evidence, the 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 offence. 6. Heard Sri. Sreekumar G., 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 challenged the judgment of conviction and sentence on the following grounds: (i) The very arrest of the accused as pleaded by the Crl.A No.910 of 2008 4 prosecution is doubtful in view of the presence of the crime number in Ext.P1 arrest memo. - (ii) The prosecution has not succeeded in proving that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The alleged arrest and seizure were effected on 06.12.2004. The Sub Inspector of Police, Chokli Police Station (PW1) effected the arrest. The case of the prosecution is based on the pleading that the appellant was arrested along with the contraband substance. Exhibit P1 arrest memo and Ext.P2 inspection memo prepared at the scene of occurrence contain the number of the crime registered against the appellant. 9. Relying on Santhosh v. State of Kerala [2021 (5) KHC 214] the learned counsel submitted that the presence of crime number makes the arrest doubtful. While dealing with a similar fact situation, this Court in Santhosh's case (supra) 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 Crl.A No.910 of 2008 5 report was inserted in the arrest memo after its registration. 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.P1 arrest memo and Ext.P2 inspection memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution has not established that the contraband seized at the place of occurrence eventually reached the Chemical Examiner's Laboratory: - (a) The delay in the production of the properties, including the sample, has not been satisfactorily explained by the prosecution. - (b) The custody of the sample during the interregnum from 18.05.2005 to 21.05.2005 has not been Crl.A No.910 of 2008 6 ## explained by the prosecution. 12. Though the seizure and arrest were effected on 06.12.2004, Ext.P6 list of properties would show that the properties, including the sample, were produced before the Court only on 15.12.2004. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 13. There is no satisfactory explanation for the delay in the Crl.A No.910 of 2008 7 production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with sample could not be ruled out. 14. The sample remained in the custody of the property clerk of the Court till 18.05.2005. Exhibit P9 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 18.05.2005 of the Judicial First Class Magistrate, Thalassery. In the absence of any contra evidence, the necessary conclusion is that the sample was received from the Court by the officer concerned on 18.05.2005. Exhibit P9 would further show that the sample reached the laboratory only on 21.05.2005. The custody of the sample during the interregnum from 18.05.2005 to 21.05.2005 remains unexplained. The property clerk of the Court and the Police official No.4730 who delivered the sample in the laboratory were not examined by the prosecution. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has Crl.A No.910 of 2008 8 proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”. 15. In the absence of any explanation as to the custody of the sample during the interregnum as mentioned above, it is to be concluded that the prosecution has not established the tamper-proof despatch of the sample to the laboratory. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 16. In the absence of any convincing evidence to show that the contraband substance seized from the scene of occurrence eventually reached the hands of the Chemical Examiner, Ext.P9 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 Crl.A No.910 of 2008 9 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 failed 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 evidence as discussed above. 20. The upshot of the above discussion is that the conviction 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 offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS