Shyju v. Sub Inspector of Police, Idukki & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944** ## **CRL.A NO. 2101 OF 2008** **AGAINST THE JUDGMENT IN SC 93/2007 ON THE FILE OF THE ADDITIONAL SESSIONS** **JUDGE/SPECIAL JUDGE FOR N.D.P.S ACT CASES, THODUPUZHA** ## **APPELLANT/ACCUSED:** - **1 SHYJU, S/O MATHEW, ATHICKAL HOUSE, MANIYARANKUDY KARA, IDUKKI VILLAGE.** - **2 RADHAKRISHNAN, S/O.THANKAPPAN PILLAI CHELAMATTATHU HOUSE, MANIYARANKUDY KARA,, IDUKKI VILLAGE.** ## **BY ADV UNNIKRISHNAN.V.ALAPATT** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 SUB INSPECTOR OF POLICE, IDUKKI** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.PP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2101 of 2008** **2** ## **`JUDGMENT`** ## **`Dated this the 27[th] day of May, 2022`** ``` Aggrieved by the judgment dated 22.08.2008 passed by the Additional Sessions Court, Thodupuzha, in Sessions Case No.93/2007, accused Nos.1 and 2 have preferred this appeal. They were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months each and pay a fine of Rs.1 Lakh each. ``` ``` 2. The prosecution case is thaton 10.11.2005 at about 1.00 pm., the appellants/accused were found possessing illicit arrack in two bottles near the public road at Maniyarankudi Junction in Idukki Village. ``` ``` 3.After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the ``` **CRL.A.No.2101 of 2008** ``` Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. ``` `4. The prosecution examined PWs 1 to 3 and proved` `Exts P1 to P10 and MO1 and MO2.` ``` 5. After the closure of the evidence on behalf of the prosecution, the 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. The Trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted them thereunder. The accused were sentenced to undergo rigorous imprisonment ``` **CRL.A.No.2101 of 2008** **4** ``` for six months each and pay a fine of Rs.1 Lakh each. ``` `6. Heard Sri.Unnikrishnan V.Alapatt, the learned` `counsel appearing for the appellants/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.` `7. The learned counsel for the appellants challenged` `the judgment on the following grounds:-` - `(a) The genesis of the prosecution case is doubtful for the reason that the prosecution failed to establish the arrest of the accused from the place of occurrence as alleged.` - `(b) The prosecution failed to establish the` - `genuineness of the sample produced before the Court.` - `(c) The delay in the analysis of the sample in the` - `laboratory has not been satisfactorily explained by the prosecution.` `8. The case of the prosecution rests on the` ``` foundation that the accused were arrested from the scene ``` **CRL.A.No.2101 of 2008** **5** ``` of occurrence on 10.11.2005, along with the contraband substances. Ext.P6 series are the arrest memos prepared by the detecting officer. Ext.P6 series contain the number of the Crime (220/2005) registered against the accused. The learned counsel disputed the arrest of the accused as alleged by the prosecution from the scene of occurrence on this ground. While dealing with a similar situation, this Court in Santhosh v. State of Kerala 2021 (5) KHC 214, held as:- ``` _“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 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 MANU/KE/1591/2020:2020 (3) KHC 715)”._ **CRL.A.No.2101 of 2008** **6** ``` 9.The prosecution has not offered any satisfactory explanation with regard to the presence of the Crime number in Ext.P6 series arrest memos. In the absence of any satisfactory explanation a doubt arises as to the manner in which the arrest and seizure were effected. ``` ``` 10. Ext.P1 is the seizure mahazar. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. In Bhaskaran K. v. State of Kerala and another [2020 KHC 5296] this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced before it. ``` ``` 11. The sample remained in the custody of the property clerk of the Court, and the Police official who delivered the same in the laboratory. These two witnesses ``` **CRL.A.No.2101 of 2008** **7** ``` were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram[AIR 1980 SC 1314]. ``` ``` 12. Yet another aspect that requires consideration is that the prosecution has not offered any explanation for the delay in the analysis of the sample in the laboratory. The bottles containing the sample reached the laboratory on 06.12.2005. The samples were subjected to analysis only on 08.11.2006. On the question of delay in the analysis of the sample, this Court in Krishnadas v. State of Kerala(2019 KHC 191)held as follows: ``` ``` “6.Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of ``` **CRL.A.No.2101 of 2008** **8** ``` which must go to the accused”. ``` ``` 13. In the instant case, the delay of almost 9 months in the analysis of the sample has not been explained by the prosecution. ``` ``` 14. The prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused eventually reached the hands of the Analyst. Therefore, Ext.P10 Certificate of Chemical Analysis has no evidentiary value. ``` ``` 15. 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. ``` ``` 16. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the ``` **CRL.A.No.2101 of 2008** **9** ``` laboratory. Resultantly, the accused are entitled to the ``` ``` 17. 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. The appellants/accused are therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. They are acquitted of the offence alleged. They are set at liberty. ``` ``` The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/27/05/2022 ```