SureNdran @ Sidhan S/o Kochunarayanan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **CRL.A.No.882 OF 2006** **SC 771/2001 OF ADDITIONAL SESSIONS COURT (ADHOC)-IV, TRHIRUVANANTHAPURAM** ## **APPELLANT/S:** **SURENDRAN @ SIDHAN S/O.KOCHUNARAYANAN, KIZHAKKUMKARA PUTHEN VEEDU, NJATTADIKKONAM, PERAYAM, ANADU MURI, PALODE VILLAGE.** **BY ADVS.** **SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR** ## **RESPONDENT/S:** **STATE OF KERALA** **REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SMT. M. K. PUSHPALATHA, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A 882/2006** -2- ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act. 2. The prosecution allegation is that on 9.9.2000 at about 10.30 a.m., the appellant was found in possession of two bottles of illicit arrack, one bottle having a capacity of 375 ml and the other bottle having a capacity of 750 ml. for the purpose of sale, in contravention of the provisions of the Abkari Act. The total quantity of the contraband possessed by the appellant was 1.125 lires. 3. Heard. 4. The learned counsel for the appellant has argued that since the arrest of the appellant, seizure of the contraband and the registration of crime were done by PW4, who was not an Abkari officer, the appellant is entitled to be acquitted. ## **Case No. Crl.A 882/2006** -3- 5. As per S.R.O. No.321/96, all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were empowered to exercise all powers and perform all duties of the Abkari officers. The Assistant Sub Inspector of Police was not included as an Abkari Officer as per S.R.O. No.321/96. The learned Public Prosecutor has submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Abkari Act. 6. The Division Bench of this Court in Subash v. State of Kerala [2008(2) KLT 1047] held that the Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Abkari Act. In the above said case, the Division Bench directed the final report to be returned for representation after curing the defects, if the trial was not commenced. In this case, PW4 was only an Assistant Sub ## **Case No. Crl.A 882/2006** -4- Inspector of Police. Therefore, he was not an Abkari Officer during the relevant period. Therefore, the seizure effected, the arrest of the appellant and the registration of the crime by PW4 were without authorisation and jurisdiction and in the said circumstances, the conviction and sentence passed by the court below, cannot be sustained. In the said circumstances, the appellant is entitled to be acquitted. 7. There are other reasons also to acquit the accused. In this case, the prosecution allegation is that the accused was arrested with the contraband. However, the arrest memo was not produced and proved to prove the arrest of the appellant. The court in Ramankutty v. Excise Inspector, Chelannur Range [2013(3) KHC 308] held that the arrest memo is a crucial document to be prepared at the time of arrest and the non-production thereof is fatal to the prosecution case. The Court further held in Ramankutty (supra) that if the arrest is not proved beyond reasonable **Case No. Crl.A 882/2006** -5- doubt, the entire case built up by the prosecution would fall to ground. In this case, the very allegation of the prosecution case is that the appellant was arrested from the spot along with the contraband. Therefore, it was the bounden duty of the prosecution to establish the arrest of the appellant beyond reasonable doubt. However, in this case, the arrest memo was not produced by the prosecution to prove the arrest of the appellant. Since the arrest of the appellant was not proved by the prosecution beyond reasonable doubt, the basis upon which the prosecution case had been built up, could not be established by the prosecution. Therefore, the appellant is entitled to be acquitted on that ground as well. 8. It is also to be noted that the incident in this case was on 9.9.2000. However, Ext.P5 property list would show that the contraband was produced before the court only on 19.9.2000. PW5 produced the contraband before the court. In this case, no explanation was given by PW5 ## **Case No. Crl.A 882/2006** -6- for the delayed production of the contraband before the court. Therefore, there cannot be any guarantee that the samples analysed in the laboratory were the samples drawn from the contraband seized from the appellant. In the said circumstances also, the appellant is entitled to be acquitted. 9. The evidence of PW4 would show that the contraband articles were seized as such from the spot. The evidence of PW5 would show that the contraband articles were as such produced before the court by PW5. Ext.P5 property list would also show that the contraband articles as such were produced before the court. Ext.P8 Certificate of Chemical Analysis would show that two bottles of 180 ml each of samples were received in the laboratory. This would show that the samples were taken from the contraband after their production before the court. However, the Thondy Clerk of the Magistrate court concerned was not examined before the court to prove the drawing of the sample from the contraband and sending the same to the laboratory. The forwarding note also does not **Case No. Crl.A 882/2006** contain the facsimile of the seal. No explanation was also given by the prosecution for the delayed production of the contraband articles before the court. 10. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 11. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution ## **Case No. Crl.A 882/2006** in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. 12. In Krishnan H. v. State [2015(1) KHC 822], the Court held that the absence of sample seal at the space provided for the same in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not affixed on the original Forwarding Note. 13. No evidence was adduced in this case by the prosecution to prove that the sample seal was affixed on the original forwarding note. Therefore, the prosecution could not establish the tamper – proof despatch of the samples to the laboratory. The Thondy Clerk was also not examined to prove the drawing of the samples and sending the same to the laboratory. In view of the above, the prosecution could not establish the drawing of the samples from the **Case No. Crl.A 882/2006** -9- contraband and sending the same to the laboratory in a tamper – proof condition. Therefore, there is no satisfactory link evidence to show that the same samples which were drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper – proof condition. Consequently, there is no link evidence connecting the appellant with the samples analysed in the laboratory. For the said reason also, the appellant is entitled to be acquitted. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. sd **B. SUDHEENDRA KUMAR, JUDGE** . dl/