Shaji v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 CRL.A NO. 2470 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 471/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` SHAJI, S/O. BHASKARAN, OOPPEL VEEDU,VAKKACITY KARA, RAJAKADE VILLAGE. ``` ``` BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S (SR.PP) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.2470 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2470 of 2007 --------------------------------------------- Dated this the 19[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 24.11.2007 in S.C.No.471/2006 passed by the IV[th] Additional Sessions Court (Adhoc-II), Thodupuzha, the accused has preferred this appeal. The Trial Court convicted the appellant for the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 10.07.2005 at 9.30 a.m. ,the accused was found in possession 2 litres of arrack at Kachirappalam. The Sub Inspector of Police, Rajakkadu Police Station, detected the offence. 3. After completion of investigation final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial Magistrate of First Class, Adimaly. The case was committed to the Sessions Court, Thodupuzha, from where it was made over to the Trial Court. On appearance of the ``` Crl.A.Nos.2470 of 2007 ``` ``` 3 ``` accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore he came to be tried by the learned IV[th] Additional Sessions Court (Adhoc-II), Thodupuzha, for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P10 and MOs 1 to 6. 5. After the closure of the evidence on behalf of the prosecution, 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 accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The Trial Court after hearing arguments convicted the accused and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 Lakh under section 8(2) of the Abkari Act. 6. Heard Sri. C.M.Tomy, the learned counsel for the appellant and Smt.Rekha S., the learned Senior Public Prosecutor. ``` Crl.A.Nos.2470 of 2007 ``` ``` 4 ``` 7. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction and sentence:- - (1) There is inordinate delay in the production of articles allegedly seized from the accused before the Court. - (2) The prosecution failed to establish that the contraband allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's laboratory. - (3) The prosecution failed to establish the factum of arrest beyond reasonable doubt. 8. The learned Senior Public Prosecutor, per contra, submitted that the prosecution succeeded in establishing the charge against the accused. She contended that sufficient materials are there to establish the prosecution case. 9. PW 6, the Inspector of Police, Rajakkad Police ``` Crl.A.Nos.2470 of 2007 ``` ``` 5 ``` Station was on patrol duty on 10.07.2005. On getting reliable information that the accused was in possession of illicit arrack, PW6 searched the shop run by the accused at the place of occurrence at 8.25 a.m. and recovered 2 litres of illicit arrack in 2 bottles. The accused was arrested by PW6, who prepared Ext.P1 Scene Mahazar evidencing recovery of the contraband substance in the possession of the accused. He collected sample from the contraband substance and sealed. PW5 completed the investigation and submitted the final report. 10. The learned counsel for the appellant submitted that the delay in the production of the material objects before the Court has not been satisfactorily explained by the prosecution. The alleged seizure was on 10.07.2005. Ext.P9 property list shows that the sample drawn at the scene of occurrence and the residue of the contraband substance were produced before the Court only on 12.07.2005. The Detecting Officer has not given satisfactory explanation for the delay in the production of the material objects before the Court. 11. In **Ravi v. State of Kerala** [2011 (3) KHC 121] ``` Crl.A.Nos.2470 of 2007 ``` ``` 6 ``` on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 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.” 12. In **Ravi's case** (supra) the Division Bench held that production of the property before the court should take place without unnecessary delay and 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 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. 14. Relying on **Bhaskaran v. State of Kerala [2020 KHC 5296]** , the learned counsel for the appellant further submitted that the genuineness of the sample ``` Crl.A.Nos.2470 of 2007 ``` ``` 7 ``` produced is doubtful for the reason that Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been affixed on the sample and the residue of the contraband substance produced before the Court. In **Bhaskaran v. State of Kerala (Supra),** this Court held that the detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court. 15. I have gone through Ext.P1 mahazar which does not contain the nature of the seal stated to have been affixed by the detecting officer. The detecting officer also has not given evidence as to the nature of the seal used. The sample was forwarded to the Chemical Examiner’s Laboratory as per letter dated 12.07.2005. The sample reached the laboratory on 13.07.2005. During the period from 10.07.2005 to 13.07.2005, the sample changed ``` Crl.A.Nos.2470 of 2007 ``` ``` 8 ``` several hands. There is nothing to show that the properties were in the safe custody of the officials who handled the sample. The Property clerk of the Court, the police official who received the sample from the Court and the Officer who delivered the sample in the laboratory were not examined. Relying on **State of Rajasthan v. Daulat Rama [AIR 1980 SC 1314]** and in **Sasidharan v. State of Kerala [2007(1) KLT 720]** , this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. 16. The omission on the part of the prosecution to examine the officials who handled the sample, during its transit from the Court to the laboratory, is fatal to the prosecution case. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the ``` Crl.A.Nos.2470 of 2007 ``` ``` 9 ``` contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 17. In the present case, the prosecution miserably failed to establish the link evidence to prove that the contraband allegedly seized from the possession of the accused was actually subjected to analysis in the laboratory. 18. The learned counsel for the appellant further contended that the absence of arrest memo casts doubt on the factum of arrest. The learned counsel relied on **D.K.Basu v. State of West Bengal [1997 (1) SCC 416]** to substantiate his contentions. 19. In the present case, the arrest memo has not been placed before the Court. 20. The prosecution has no case that the arrest memo was prepared and not produced before the Court. The necessary inference is that arrest memo was not prepared at the time of alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while he was in possession of the contraband ``` Crl.A.Nos.2470 of 2007 ``` ``` 10 ``` substance at the place of occurrence. 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. The upshot of the above discussion is that the prosecution failed to establish the charge against the accused beyond reasonable doubt. The accused is therefore entitled to the benefit of doubt. The appellant/accused is acquitted of the charge. He is set at liberty. The Criminal Appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK