State of Kerala v. Madhu A.P., Mahesh K.P. alias Muthu, and Praveen alias Kuttan; State of Kerala v. Aneesh K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** ## **CRL.A NO. 753 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 436/2006 OF ADDITIONAL SESSIONS** **COURT (ADHOC) III, MANJERI** **CP 32/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR** ## **APPELLANT/ACCUSED NOS 1 TO 3:** 1 MADHU.A.P. S/O MAKKU, ARANGAMPALIYALIL HOUSE, KATTIPPARUTY AMSOM,, PAIKANNUR. 2 MAHESH K.P. ALIAS MUTHU S/O. KUNHADI, KALAMPATTAPARAMBIL HOUSE,, SANKARAMANGALAM, KOZHIKODE. 3 PRAVEEN ALIAS KUTTAN S/O. CHATHAPPANKUTTY, PAIKANNUR NIRAPPIL,, DOCTORPADI. BY ADV M.REVIKRISHNAN ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, ALONG WITH CRL.A.764/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos. 753 and 764 of 2007 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 CRL.A NO. 764 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 436/2006 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI** ## **APPELLANT/ACCUSED NO.4:** ANEESH K AGED 25 YEARS S/O. VASU, KOTHODIYIL HOUSE, NEAR JUMAYATH PALLI,, KATTIPPARUTHY. BY ADV M.REVIKRISHNAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, ALONG WITH CRL.A.753/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos. 753 and 764 of 2007 3 ## **K.BABU, J** . -------------------------------------- Criminal Appeal Nos.753 and 764 of 2008 --------------------------------------Dated this the 24[th] day of May, 2022 ## **JUDGMENT** These appeals are directed against the judgment dated 19.03.2008 in S.C.No.436/2006 on the file of the Additional Sessions Judge, Fast Track Court-III (Adhoc), Manjeri which arose from Crime No.167 of 2005 of Valancheri Police Station. The appellants in Crl.A.No. 753/2008 are accused Nos.1 to 3 and the appellant in Crl.A.No.764/2008 is accused No.4. 2. By the impugned judgment, the appellants were convicted for the offence punishable under Section 8(2) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of two years each and pay a fine of Rs.1,00,000/- each under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 13.06.2005 at Crl.A Nos. 753 and 764 of 2007 4 10.50 a.m the appellants/accused 1 to 4 were found transporting 15 litres of illicit arrack in three cans kept in a bag in an auto rickshaw bearing registration No. KL-10 B/3662 through Chembra-Valanchery road. 4. 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 Judicial First Class Magistrate Court, Tirur. The case was committed to the Sessions Court, Manjeri 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. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P12 and Mos 1 to 4. 6. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Crl.A Nos. 753 and 764 of 2007 5 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 under Section 8(2) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo rigorous imprisonment for a period of two years each and pay a fine of Rs.1,00,000/- each under Section 8(2) of the Abkari Act . 7. Heard Sri. P. Vijaya Bhanu, the learned Senior Counsel appearing for the appellants/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellants/accused challenged the impugned judgment on the following grounds. Crl.A Nos. 753 and 764 of 2007 6 a. The prosecution has not succeeded to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. b. The prosecution failed to establish the arrest of the accused creating doubt about the genesis of the prosecution case. 9. The learned Senior Counsel for the appellants relied on the following circumstances to substantiate his contentions. I) The nature and description of the seal stated to have been affixed on the bottles containing the sample had not been narrated in the seizure mahazar. II) PW7, the detecting officer has not given evidence as to the nature and description of the seal affixed on the sample. III) The specimen seal had not been produced before the Court and forwarded to the Chemical Crl.A Nos. 753 and 764 of 2007 7 Examiner's laboratory. IV) The presence of the Crime number in the arrest memo creates doubts about the genesis of the prosecution case. 10. The crime was detected by the Sub Inspector of Police, Valanchery (PW7) on 13.06.2005. PW7, on getting information that illicit arrack was being transported in an autorickshaw bearing registration No.KL-10 B/3662, proceeded to the place of occurrence and intercepted the autorickshaw involved. On inspection, PW7 found 15 litres of illicit arrack in three cans in the autorickshaw. Accused No.4 was the driver of the vehicle. The other accused were sitting on the back seat. PW7 arrested all the accused and recovered the contraband substance as per Ext.P2, seizure mahazar. PW7, collected 150 ml of arrack from each can in three bottles and sealed the same to be used as sample. 11. I have carefully gone through Ext.P2, seizure mahazar and other contemporaneous records prepared by the 8 Crl.A Nos. 753 and 764 of 2007 detecting officer. Ext.P12 mahazar or any other contemporaneous documents prepared at the scene of occurrence do not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. PW7 has not given evidence as to the nature of the seal used. Prosecution also failed to establish that the specimen seal was produced before the Court at time of production of the sample and other articles, to ensure the genuineness of the articles, including the sample, produced before the Court. In Ext.P8, copy of the forwarding note, the date of production of the sample mentioned is not legible. 12. While considering the evidentiary burden of the prosecution in the cases coming under the Abkari Act, in **Baburaj v. State of Kerala** [2021 (6) KLT 416] **,** following a series of precedents, this Court held thus:- “22. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the Crl.A.No.1523 of 2007 11 contraband. The prosecution in a case of this nature can succeed only if it Crl.A Nos. 753 and 764 of 2007 9 establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 23. 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 contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 24. In Sasidharan v. State of Kerala (2007 (1) KLT 720), this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on State of Rajasthan v. Daulath Ram MANU/SC/0242/1980 : (1980 KLT OnLine 1025 (SC) : AIR 1980 SC 1314) in Sasidharan (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to Crl.A Nos. 753 and 764 of 2007 10 necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In Sathi v. State of Kerala MANU/KE/0947/2007 : (2017 (1) KLT SN 6 (C. No. 7) : 2007 (1) ILR 718 (Ker.)), this Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In Sathi (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in Sasidharan (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala (2011 (3) KLT 353). 25. In Bhaskaran v. State of Kerala MANU/KE/0606/2019 : (2019 (3) KLT SN 34 (C. No.49) : 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 Crl.A Nos. 753 and 764 of 2007 11 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. 26. In Rajamma v. State of Kerala (MANU/KE/0056/2014 : 2014 (1) KLT 506), this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report.” 13. In the instant case, this Court noticed the following loopholes in the prosecution evidence. a) The nature and description of the seal stated to have been affixed on the sample had not been mentioned in the seizure mahazar or in any other documents. b) No evidence was adduced by the prosecution Crl.A Nos. 753 and 764 of 2007 12 to establish the nature and description of the seal used at the time of drawing sample. c) The specimen of the seal had not been produced before the Court. d) There is nothing to show that the specimen seal was forwarded to the laboratory to ensure the genuineness of the sample sent for analysis. (e) The sample remained in the custody of the property clerk of the Court, the police official who received the sample from the Court and the police official who delivered the sample in the laboratory. None of these officials were examined to rule out the possibility of the sample being changed or tampered with. 14. The resultant conclusion is that, Ext.P9 certificate of chemical analysis which formed the basis of the conviction is not acceptable. 15. The learned counsel for the accused also disputed the arrest of the accused. He mainly relied on Crl.A Nos. 753 and 764 of 2007 13 the presence of the crime number in Ext.P4 series arrest memo, Inspection memo and arrest intimation. These memos contain the number of the crime (167/2005) registered against the accused. 16. This Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] had an opportunity to consider a similar fact situation wherein it was 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 Crl.A Nos. 753 and 764 of 2007 14 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 (2020(3) KHC 715)].” 17. Therefore, the seizure of the contraband substance and the arrest of the accused came under cloud, the benefit of which must go to the accused. 18. 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 laboratory. Prosecution also failed to establish the arrest of the accsued from the place of occurrence as alleged. 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 Crl.A Nos. 753 and 764 of 2007 15 the Abkari Act. They are acquitted of the charge. They are set at liberty. These appeals are allowed as above. Sd/K.BABU, JUDGE rpk