Sathyan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 CRL.A NO. 295 OF 2006 ``` ``` AGAINST THE JUDGMENT IN SC 902/2003 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA ``` ``` CP 105/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KAYAMKULAM APPELLANT/ACCUSED NO.1: ``` ``` SATHYAN, S/O VASUDEVAN, SANDYA BHAVANAM, PUTHUPPALLY THEMMUM MURI, PUTHUPPALLY VILLAGE, KAYAMKULAM. ``` ``` BY ADV SATHYAN (PARTY) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA,REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV ``` ``` ADV. RANJIT GEORGE – SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 295 OF 2006 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant herein is the 1[st] accused in S.C. No.902/2003 on the file of the Additional Sessions Judge, Fast Track Court – II, Alappuzha. The aforesaid case arises from Crime No.315/2002 of Kayamkulam Police Station, which was registered against the appellant and another for the offences punishable under Section 8(1) and (2) of the Abkari Act. 2. The prosecution case is that on 20.05.2002 at 6 p.m., when the Sub Inspector of Kayamkulam Police Station, along with his party were conducting patrol duty, they got an information that the accused were selling arrack in a vacant land near C.M.S. School, Puthuppally. Immediately they rushed to the spot and found the accused with two kannas, and on seeing the Police party, they ran away. However, the 1[st] accused/appellant was apprehended, and upon examining the contents of the kannas, it was found that there were about 2 litres of arrack. Immediately the appellant was arrested, and the articles were seized. From the arrack seized, 180 ml. litres of arrack was drawn in a bottle as a sample and the same ``` CRL.A NO. 295 OF 2006 ``` ``` 3 ``` was also sealed. Later the Police conducted an investigation, and the final report was also submitted before the Judicial First Class Magistrate Court, Kayakmkulam, where it was taken into the file as C.P. No.105/2003. After completing legal formalities, the same was committed to the Sessions Court, Alappuzha, from where it was made over to Additional Sessions Judge, Fast Track Court - II, Alappuzha, where it was tried as S.C. 902/03. 3. In support of the prosecution, PWs 1 to 5 were examined, Exts.P1 to P7 were marked and material objects 1 to 3 were identified. After the closure of the prosecution evidence, the appellant and the 2[nd] accused were examined under Section 313 Cr.P.C., and the incriminating materials brought out during the course of the trial were put to him. They denied the same and pleaded innocence. 4. After evaluating the materials produced by the prosecution, the learned Sessions Judge arrived at a conclusion that the appellant / 1[st] accused is guilty of the offence and the 2[nd] accused was found not guilty. Accordingly, the appellant was ``` CRL.A NO. 295 OF 2006 ``` ``` 4 ``` sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with a default sentence to undergo rigorous imprisonment for three months. 5. This Criminal Appeal was submitted by the appellant challenging the aforesaid order of conviction and sentence. 6. As the learned counsel originally appeared for the appellant has been elevated as a judge of this Court, notice was issued to the appellant. However, there was no response from the appellant. In such circumstances, Adv.Swathi R. Krishnan was appointed as Amicus Curiae to assist this Court, and I have heard her as well as Sri.Ranjit George, learned Public Prosecutor, appearing for the State. 7. The learned Amicus Curiae raises several contentions regarding the discrepancies in the seizure, sampling and production of the articles before the court. It was pointed out that the prosecution failed in establishing the tamper proof condition of the articles seized from the appellant until it was made available for chemical analysis. The aforesaid contention was put forward by the ``` CRL.A NO. 295 OF 2006 ``` ``` 5 ``` learned Amicus Curiae mainly because, (i) Ext.P1 mahazar does not contain the impression of sample seal or the description of the same. (ii) No forwarding note is seen marked by the prosecution. (iii) Even though Ext.P3 arrest memo was produced, from careful scrutiny of the said document, it can be seen that the crime number originally mentioned therein was effaced. (iv) There was a delay of six days in producing the contraband article before this court. By placing reliance upon the same, the learned counsel seeks interference in the finding of conviction entered by the Sessions Court. Reliance was also placed on the decision in **Ramankutty v. Excise Inspector, Chelannur Range [2013 (3) KHC 308], Mini v. State of Kerala [2020 KHC 5025], Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347], Unnikrishnan v. State of Kerala [2021 KHC 4727]** and **Ajayakumar v. State of Kerala [2021 KHC 3872].** 8. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. According to the learned Public Prosecutor, the evidence of official witnesses in the form of PWs 3 ``` CRL.A NO. 295 OF 2006 ``` ``` 6 ``` and 4 and the documents prepared at the time of seizure and arrest of the appellant are sufficient to hold the appellant guilty of the offences. Hence no interference is warranted, contends the learned Public Prosecutor. 9. One of the main arguments placed by the learned Amicus Curiae is relating to the lack of impression of the sample seal on Ext.P1 mahazar. It is pointed out that the same does not even contain the description thereof. Learned Amicus Curiae brought my attention to the decision rendered by this Court in **Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347]** wherein detailed guidelines with regard to the manner in which seizure has to be effected by the Police in respect of an abkari offence have been mentioned. Observations in the said judgment in paragraph 13 is relevant in this regard, wherein, among several other measures, the necessity to affix the impression of the seal on the mahazar and mentioning the description of such seal thereon are specifically mentioned. 10. In this case, it is evident that Ext.P1 mahzar does not ``` CRL.A NO. 295 OF 2006 ``` ``` 7 ``` contain the specimen seal nor its description. It is also discernible from the records that the seal was not produced before the court. I find force in the contention put forward by the learned Amicus Curiae in such circumstances. In **Moothedath Sivadasan v. State of Kerala [2021 (2) KLJ 80]** also, this Court held that absence of a seal in mahazar and the non-production of the seal are fatal to the prosecution case. 11. Another illegality pointed out by the learned Amicus Curiae is the failure to mark the forwarding note. In support of the aforesaid contention, the learned counsel relies on the decision rendered by this Court in **Unnikrishnan (supra) and Ajayakumar (supra).** In the aforesaid decisions, it was categorically held that the absence of a forwarding note is a crucial lacuna in the prosecution case. A forwarding note is an important document which would indicate the forwarding of the sample for chemical analysis, and the same is expected to contain the impression of the sample seal affixed on the articles. If the forwarding note, along with the impression of the sample seal, is not produced before the ``` CRL.A NO. 295 OF 2006 ``` ``` 8 ``` Court, it cannot be safely concluded that the sample drawn from the articles found in possession of the appellant was made available for the chemical analysis in a tamper proof condition. In this case, no forwarding note has been produced, and this is a serious lapse on the part of the prosecution. Another aspect highlighted by the learned Amicus Curie is about the delay in the production of the articles. Ext.P5 is the property list. It is evident from the records that the seizure was effected on 20.05.2002, whereas the articles were produced on 27.05.2002. Even though during cross examination, a specific question was put to PW4, the detecting officer, as to the reason for the delay, the only explanation was that, due to pressure of work, he could not produce the same. Even though it is stated by him that during the relevant period, the same was in his safe custody, the absence of a proper explanation for the delay is fatal to the prosecution because of the tamper proof condition of the contraband article during the period from seizure until the same was produced before the court is in doubt. In **Ramankutty’s** case (supra), the aforesaid question was explicitly ``` CRL.A NO. 295 OF 2006 ``` ``` 9 ``` considered by this Court. It was held that in the absence of a satisfactory explanation by the prosecution showing the cause of delay, even the delay of one day is fatal. In this case, I do not find any satisfactory explanation being offered by the detecting officer for the delay in the production of the same, and in such circumstances, this is to be treated as yet another circumstance which creates a shadow of doubt on the prosecution case. 12. Apart from the above, the learned Amicus Curiae also raises a contention that Ext.P3 arrest memo contains the crime number, but the same was later effaced. It was pointed out that, since the arrest was made from the spot and the crime was registered subsequently, under no circumstances the crime number should have been mentioned in the arrest memo. The presence of the crime number in the arrest memo itself creates a shadow of a doubt as to the place, date and manner in which the arrest of the appellant was taken place. Since the specific case of the prosecution is that the appellant was arrested along with the contraband articles, the discrepancies in the arrest are a crucial aspect which would ``` CRL.A NO. 295 OF 2006 ``` ``` 10 ``` throw serious doubt on the veracity of the prosecution case. However, on examining Ext.P3 arrest memo, it is not very clear whether the crime number was mentioned therein or not. The same indeed contains certain marks indicating the effacing of some entries. But it cannot be concluded explicitly that entry effaced was a crime number. In such circumstances, I do not find any merit in the contention put forward by the learned Amicus Curiae in this regard. 13. When the entire materials placed on record are taken into consideration, there are certain glaring inconsistencies/discrepancies in the prosecution case, as highlighted by the learned Amicus Curiae. The aforesaid discrepancies are very serious in nature and goes to the root of the prosecution case. In such circumstances, the irresistible conclusion possible is that the prosecution failed to establish the guilt of the accused with adequate proof. The said finding necessitates an interference in the order of conviction and consequential sentence passed by the learned Sessions Judge. ``` CRL.A NO. 295 OF 2006 ``` ``` 11 ``` In the result, this appeal is allowed, the judgment dated 21.01.2006 in S.C. No.902/2003 passed by the Additional Session Judge, Fast Track Court– II, Alappuzha, is set aside. The appellant is found not guilty, and he is acquitted of all the charges. I thankfully appreciate the earnest efforts and able assistance provided by Adv.Swathi R. Krishnan, learned Amicus Curiae. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ```