Sudhishkumar v. State of Kerala; Mohandas and Kondunni Kunisseri Eramayoor-II Palakkad; Harindranath So Kandanthodi Bhaskaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ## **`CRL.A NO. 865 OF 2015`** ``` CRIME NO.437/1999 OF Irinjalakuda Police Station, Thrissur AGAINST THE ORDER/JUDGMENT CRMC 5064/2015 OF HIGH COURT OF KERALA SC 440/2006 OF III ADDITIONAL DISTRICT COURT, THRISSUR / II ADDITIONAL MACT, THRISSUR ``` ## **`APPELLANT:`** ``` SUDHISHKUMAR AGED 43 YEARS S/O.PALASSERIL VELAYUDHAN NAIR, CHETTIPADOM, AMARAMBLAM, NILAMBUR BY ADV SRI.RAJIT ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` SRI.G.SUDHEER. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2024, ALONG WITH CRL.A.270/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 CRL.A NO. 270 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT SC 440/2006 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC), THRISSUR ``` ## **`APPELLANT:`** ``` 1MOHANDAS AND ANOTHER KONDUNNI, KUNISSERI, ERAMAYOOR-II,, PALAKKAD. 2HARINDRANATH SO.KANDANTHODI BHASKARAN, ALATHUR, PALAKKAD. BY ADVS. SRI.P.VIJAYA BHANU SMT.P.MAYA ``` ## **`RESPONDENT:`** ``` STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` SRI.G.SUDHEER. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2024, ALONG WITH CRL.A.865/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 3 ``` ## . **K.BABU, J** -------------------------------------- [Crl.A.Nos.865/2015, 270/2008] --------------------------------------- ## **Dated this the 16[th ] day of February, 2024** ## **J U D G M E N T** Aggrieved by the judgment dated 30.01.2008, passed by the Additional Sessions Court, (Adhoc), Fast Track Court-I, Thrissur, accused Nos.1 to 3 have preferred these appeals. The appellants in Crl.A.No.270 of 2008 are accused Nos. 1 and 2 respectively. The appellant in Crl.A.No.865 of 2015 is accused No.3. 2. The prosecution case is that accused Nos.1 to 7 conspired together to unlawfully transport one lorry load of spirit from Mysore to the toddy godown of accused No.5 for the purpose of mixing the spirit with toddy. Pursuant to the criminal conspiracy, accused Nos.1 to 4 transported 800 litres of spirit in the secret chamber made under the platform of the lorry bearing Reg.No.KLL 7817, driven by accused No.4. The lorry belongs to accused No.8. On 24.07.1999 at 11.45 p.m., the lorry was intercepted by the Sub Inspector of Police Irinjalakuda ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 4 ``` on the Thrissur-Kodungallur public road at Irijalakuda Christ College Junction. 3. After completing the investigation, final report was submitted against accused Nos.1 to 8 for the offences punishable under Section 120 B of the IPC and Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Irinjalakkuda. The case was committed to the Sessions Court, Thrissur, from where it was made over to the Trial Court. On the appearance on the accused charges were framed against them for the offences referred to above. The accused pleaded for not guilty to the charges and therefore, they came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 7, and proved Exts.P1 to P11 and MOs. 1 to 25. 5. After the closure of the prosecution evidence, 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 the defence, Ext.D1 was marked. After ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 5 ``` hearing the arguments addressed on both sides, the Trial Court convicted the appellants for the aforesaid offences. 6. The Trial Court convicted accused Nos.1 to 3 under Section 55(a) of the Abkari Act. The Trial Court acquitted accused Nos.1 to 3, 5 and 6 of the offence under Section 120 B of the IPC. The court also acquitted accused Nos.5,6 and 8 of the offence under Section 55(a) of the Abkari Act. The case against accused No.7 who failed to face trial was split up. 7. Heard Kum.Nikita, the learned counsel appearing on behalf of the appellants and Smt. Maya, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants challenges the judgment of conviction and sentence on the following grounds:- a) The arrest of the accused is doubtful. b) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s laboratory. 9. According to the prosecution, on 24.07.1999, at 10.p.m. the accused were arrested from the place of occurrence along with the contraband substance. ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 6 ``` 10. The learned counsel for the appellants contended that the prosecution failed to prove the alleged arrest as the arrest memos have not been produced before the Court. 11. I have gone through the materials placed before this Court. No arrest memos have been produced. The detecting officer has no case that arrest memos were prepared but not produced before the Court. 12. 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 ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 7 ``` practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 13. 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 noncompliance 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. 14. This Court in **Ramankutty v. Excise Inspector, Chelannur Range [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 ``` 8 ``` ``` [CRL.A Nos.865/2015, 270/2008] ``` 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. 15. The learned counsel for the appellants relied on the following circumstances to contend that the prosecution failed to establish the genuineness of the sample that reached the Chemical Examiner’s Laboratory: a) The delay in the production of the properties including the sample has not been properly explained by the prosecution. b) Exhibit P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. c) The detecting officer has not given evidence as to the nature and description of the seal used. d) The specimen of the seal has not been produced before the Court to ensure the ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 9 ``` genuineness of the sample produced. 16. The alleged seizure was on 24.07.1999. The properties including the sample were admittedly produced by PW7 in the Court on 29.07.1999. It shows that there was a delay of 4 days in producing the bottles containing the sample before the court. The explanation given by PW7 is that he had kept the properties in the thondy room in the Police Station in his custody. The prosecution has not given explanation as to why the properties including the sample could not be produced before the Court when the accused were produced. The explanation given by the prosecution is not satisfactory. 17. In Rav i v. State of Kerala [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: “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 the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to ad 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.” 18. In Rav i's case (supra), the Division Bench held that production of the property before the Court should take place ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 10 ``` without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 19. There is no satisfactory explanation for the delay in the production of the sample 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. 20. Exhibit P2 is the seizure mahazar prepared at the scene of occurrence by the detecting officer. Ext.P2 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. The specimen of the seal has not been produced before the court along with the properties to ensure the genuineness of the contraband allegedly seized from the place of occurrence. 21. 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 ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 11 ``` Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 22. It is pertinent to note that the property list prepared by the detecting Officer was not produced and marked. The bottles containing the sample remained in the custody of the property clerk till 25.02.2000, which is evident from Ext.P10 Certificate of Chemical Analysis. The sample was delivered in the laboratory by a Police Constable No.3210. The officials who handled the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 23. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 24. 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 ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 12 ``` occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 25. 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. Daulat Ram [AIR 1980 SC 1314]** in **Sasidharan's case** (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to 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 [2007 (1) ILR 718 (Ker.)]** , this Court reemphasized 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's case** (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 ``` [CRL.A Nos.865/2015, 270/2008] ``` ``` 13 ``` presumption under Section 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's case** (supra) and **Sathi's case** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . 26. In the present case, the prosecution failed to establish that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P10 Certificate of Chemical Analysis has no evidentiary value. 27. 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. 28. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused **{Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC** ``` 14 ``` ``` [CRL.A Nos.865/2015, 270/2008] ``` ## **1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}.** 29. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 30. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused Nos.1 to 3 are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. **Sd/K.BABU, JUDGE** saap