Sreenivasan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.A NO. 734 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 08.02.2008 IN SC 723/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT FAST TRACK ``` ``` (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` SREENIVASAN S/O NELLAN, KOLLARAPUNATHIL HOUSE, MAKKADA AMSOM, KAKKODY BY ADV SRI.P.V.ANOOP ``` ## **`RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S. SR.P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 734 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 08.02.2008, passed by the Additional Sessions Court, Fast Track (Adhoc-II), Kozhikode in Sessions Case No.723 of 2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 02.02.2005 at 6.30 p.m. the accused was found manufacturing arrack in a shed attached to his house bearing No.2/544 of Kakkody Panchayath 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 8(2) of the Abkari Act before ``` CRL.A NO. 734 OF 2008 ``` ..3.. 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 charge was framed against him for the offence punishable under Section 8(2) 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 5 and proved Exts. P1 to P7 and MO1series. 5. After the closure of the evidence on behalf of the prosecution, 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. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him ``` CRL.A NO. 734 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** thereunder. 6. Heard Sri. Anoop P.V., 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 challenges the judgment of conviction and sentence on the following grounds:- (I) The arrest and seizure as alleged by the prosecution are doubtful. (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The seizure and arrest were effected by the Sub Inspector of Police, Elathur (PW1) on 02.02.2005. According to PW1, the accused was arrested along with the contraband substance and the other implements used for the manufacture of illicit arrack from the scene of ``` CRL.A NO. 734 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** occurrence. 9. The learned counsel for the accused disputed the arrest of the accused relying on the fact that the crime number is mentioned in Ext.P2 arrest memo. 10. Ext.P2 contains the number of the crime registered against the accused. While dealing with a similar fact situation, this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] 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 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 ``` CRL.A NO. 734 OF 2008 ``` ..6.. 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(3) KHC 715)].” 11. In the absence of any satisfactory explanation offered by the prosecution as to the presence of crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 12. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution has not succeeded in proving that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. (i) The delay in the production of the properties, including the sample, has not been satisfactorily explained. (ii)Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed by the detecting officer. ``` CRL.A NO. 734 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** (iii)The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution. 13. Ext.P1 is the seizure mahazar prepared to evidence search and seizure. Ext.P1 does not contain the nature and description of the seal used by the Detecting Officer. 14. In **Bhaskaran v. State of Kerala** (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 in the Court. 15. Though the seizure was effected on 02.02.2005, the properties, including the sample, were produced before the Court only on 04.03.2005. PW1, the detecting officer stated that the sample remained in his safe custody during the interregnum. This is not a satisfactory explanation for the delay in the production of the ``` CRL.A NO. 734 OF 2008 ``` ..8.. properties before the Court. 16. In **Ravi v. State of Kerala** [2011 (3) KHC 121] 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.” 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 ``` CRL.A NO. 734 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** not be ruled out. 18. The sample remained in the custody of the property clerk of the Court and the police official who delivered the sample in the laboratory. None of those officials were examined by the prosecution 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] 19. In the instant case, the prosecution has not succeeded in proving that the contraband seized from the place of occurrence was forwarded to the Chemical Examiner’s Laboratory. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link evidence connecting the accused with the contraband substance allegedly seized. In the result, (i) The Appeal is allowed ; ``` CRL.A NO. 734 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused, as per the interim orders of this Court, shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj