Shaji and Jayakumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945 ``` ``` CRL.A NO. 2077 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 27.10.2006 IN SC 235/2005 OF ADDITIONAL ``` ``` SESSIONS COURT (ADHOC-I), THODUPUZHA ``` ## **`APPELLANTS/ACCUSED:`** ``` 1SHAJI, S/O.KUTTAPPAN, PARATHAZHATHU VEEDU, CHATTUPARA KARA, MANNAMKANDAM VILLAGE ``` ``` 2JAYAKUMAR, S/O.GOPINADHAN, DEVIVILASOM VEEDU, KONNATHADI BHAGAM, KONNATHADI KARA, KONNATHADI VILLAGE ``` ``` BY ADV SRI.K.C.PETER ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV. SRI.N.R.SANGEETHARAJ, PP S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.2077 of 2006 2 ## . **K.BABU, J** ----------------------------------------- ## Crl.A.No.2077 of 2006 ------------------------------------------Dated this the 23[rd] day of June, 2023 ## **JUDGMENT** Aggrieved by the judgment dated 27.10.2006, passed by the Additional Sessions Court (Adhoc-I), Thodupuzha in Sessions Case No.235/2005, the two accused have preferred this appeal. The appellants/accused were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of four years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 06.01.2003 at about 1.45 p.m., the accused were found in possession of 140 litres of illicit liquor at Adimaly, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(g) 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, charges were framed against them for the offences punishable under Sections 55(a) and 55 (g) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came Crl.A.No.2077 of 2006 3 to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 and 5 and proved Exts. P1 to P8 and MOs 1 to 11 series. 5. After the closure of 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. On the side of defence, Exts. D1 and D2 were marked. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder. 6. Heard Sri.K.C.Peter, the learned counsel appearing for the appellants/accused and Sri.N.R.Sangeethraj, the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the following grounds:- - (1) The arrest of the appellants/accused as pleaded by the prosecution is doubtful. - (2) The prosecution failed to establish that the contraband substance allegedly recovered from Crl.A.No.2077 of 2006 4 the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The prosecution case is that on 06.01.2003, the accused were arrested and the contraband substances were recovered. 9. The learned counsel for the appellants submitted that the arrest as pleaded by the prosecution is doubtful due to the nonproduction of the arrest memo and the arrest intimation as required. 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 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 Crl.A.No.2077 of 2006 5 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) KLT SN 83 (C. No. 83) : 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 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. Crl.A.No.2077 of 2006 6 13. The learned counsel for the appellants further contended that the prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 14. The learned counsel for the appellants relied on the following circumstances to substantiate his contentions: - (i) The delay in the production of the properties including the sample before the Court remained unexplained. (ii) Various officials who handled the sample during its transit from the Court to the Laboratory were not examined. 15. The alleged seizure was effected on 06.01.2003. The properties including the sample were produced before the Court only on 10.01.2003 which is evident from Ext.P4 Property List. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court. 16. In **Ravi v. State of Kerala** [2011 (3) KHC 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_ Crl.A.No.2077 of 2006 7 _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 **Ravi's 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. 17. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 18. The properties including the sample remained in the custody of the Property Clerk. The bottles containing the sample were forwarded to the laboratory on 31.01.2003. The sample reached the laboratory on 01.02.2003. A Police Constable No.1805 delivered the sample in the laboratory. None of those officials were examined by the prosecution. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as it is failed to rule out the possiblity of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of** Crl.A.No.2077 of 2006 8 ## **Rajasthan v. Daulat Ram [AIR (1980) SC 1314].** 19. 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. 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.P4, 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 result, the appellants/accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. ``` Sd/- ``` ``` K.BABU JUDGE ``` VPK