Sunil Kumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944** **CRL.A NO. 720 OF 2007** **AGAINST THE ORDER/JUDGMENTSC 344/2002 OF ADDITIONAL DISTRICT COURT** **(ADHOC), MAVELIKKARA** ## **APPELLANT/ACCUSED NO 1:** SUNIL KUMAR AGED 40 YEARS S/O.ARAVINDAKSHAN, `ASWATHY BHAVANAM',, WARD NO.XI, KARTHIKAPPALLY VILLAGE,, MAHADEVIKAD MURI. BY ADVS. S.SHANAVAS KHAN S.INDU ## **RESPONDENT/COMPLAINANT:** THE STATE OF KERALA REPRESENTED BY THE 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 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 720 of 2007 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.720 of 2007 --------------------------------------Dated this the 7[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 22.03.2007, passed by the Additional Sessions Court, Fast Track (Adhoc), Mavelikara in Sessions Case No.344/2002, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.07.2000 at 7.00 p.m, the appellant/accused and two others were engaged in the sale of illicit arrack on the premises of the residential building by name Aswathy Bhavanam in ward No.XI of Karthikappally Panchayath in violation of the provisions of the Abkari Act. The Sub Inspector of Police, Thrikunnapuzha Police Station, arrested the 3 Crl.A No. 720 of 2007 appellant/accused from the spot. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before 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 charges were framed against them for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The accused pleaded 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 6 and proved Exts P1 to P12 and MOs 1 and 2. 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 4 Crl.A No. 720 of 2007 accused, and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. DWs 1 to 3 were examined and Exts.D1 to D3 were marked on the side of defence. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 8(2) and 55(a) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh for the aforesaid offences. 6. Heard Smt.S.Indu, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds. a) Arrest of the accused as alleged by the prosecution is doubtful in view of the presence of the 5 Crl.A No. 720 of 2007 crime number in Ext.P2, arrest memo. b) The inordinate delay in the production of properties before the Court has not been explained by the prosecution. c) The prosecution failed to ensure the genuineness of the sample produced before the Court and forwarded to the laboratory. 8. The a lleged seizure was effected on 09.07.2000 on the premises of a residential building by the name 'Aswathi Bhavanam' in Ward No.XI of Karthikappally Panchayath. According to the prosecution, the appellant was arrested from the scene of occurrence. 9. The learned counsel disputed the arrest of the accused relying on the presence of the Crime Number in Ext.P2 arrest memo. Ext.P2 contains the number of Crime as 104/2000 registered against the appellant and others. 10. This Court in **Santhosh v. State of Kerala** Crl.A No. 720 of 2007 6 [2021 (5) KHC 214] had an opportunity to consider a similar fact situation. In **Santhosh** (supra) this Court 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 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)** ].” (emphasise supplied) 11. In the absence of any satisfactory 7 Crl.A No. 720 of 2007 explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 12. Though the seizure was effected on 09.07.2000, Ext.P8, the list of properties shows that the properties were produced before the Court only on 21.07.2000. Prosecution has not offered any satisfactory explanation for the delay in the production of the properties, including the sample, before the Court. 13. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another** (2011(3) KHC 121) held thus: “8. We therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by Crl.A No. 720 of 2007 8 virtue of Section 102(3) Cr.P.C 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 an explanation for the delay when there is delayed production of the property. 14. 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. 15. Ext.P1, seizure mahazar does not contain the nature and description of the seal stated to have been 9 Crl.A No. 720 of 2007 affixed on the bottle containing the sample collected from the scene of occurrence. The detecting officer has not given evidence as to the nature of the seal used. The sample remained in the custody of the property clerk of the Court till it was forwarded to the laboratory on 18.12.2000. The sample was delivered to the laboratory by Police Constable No.3093. The property clerk of the Court and the Police Constable concerned were not examined as witnesses. 16. The crux of the offences under the Abkari Act, by its very nature, is the seizure of 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. 17. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's Laboratory in a tamper-proof Crl.A No. 720 of 2007 10 condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 18. 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 tamperproof condition. Relying on **State of Rajasthan v. Daulat Ram** :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 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 re-emphasized on the requirement of strict compliance with the statutory formalities in the matter Crl.A No. 720 of 2007 11 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). 19. 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 before the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 20. The prosecution has failed to establish that Crl.A No. 720 of 2007 12 the contraband substance seized from the place of occurrence was eventually examined at the Chemical Examiner's Laboratory. Therefore, Ext.P12, Certificate of Chemical Analysis, has no evidentiary value. 21. 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. 22. 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 and other circumstances discussed above. 23. 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 Crl.A No. 720 of 2007 13 sustained. In the result, he is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk