Surendran v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 CRL.A NO. 865 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 1054/2005 OF ADDITIONAL DISTRICT COURT (ADHOC) III, TRIVANDRUM ``` ``` APPELLANT: ``` ``` SURENDRAN THERANDAD VEEDU,LAKSHAM VEEDU COLONY,, ANATHALAVATTOM DESOM,, SANKARA VILLAGE. BY ADV SRI.M.DINESH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` OTHER PRESENT: ``` ``` SMT.REKHA.S-SR.P P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 865 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 16.04.2008, passed by the Additional Sessions Court, Fast Track -III, Thiruvananthapuram in Sessions Case No.1054/2005, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 05.11.2004 at 12.30 noon the accused was found in possession of 4 litres of arrack on the western side of his house at Anathalavattom 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 the jurisdictional Magistrate. The case was committed to ``` CRL.A NO. 865 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 4 and proved Exts. P1 to P8 and MOs 1 and 2. 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 thereunder. ``` CRL.A NO. 865 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 6. Heard Sri. Dinesh M., 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:- - (1) The alleged arrest is doubtful. - (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. - (3) The drawing of sample by the property clerk of the Court is not a procedure established by law. 8. The alleged seizure was effected by PW1, the Sub Inspector of Police, Chirayinkeezhu on 05.11.2004. According to PW1, he seized a can containing 4 litres of illicit arrack. No sample was drawn by the detecting ``` CRL.A NO. 865 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** officer at the place of occurrence. 9. The defence challenges the arrest of the accused as alleged. The learned counsel for the accused disputed the arrest of the accused on the ground that Ext.P2 arrest memo 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 andthe 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)].” ``` CRL.A NO. 865 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 10. In the absence of any satisfactory 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. 11. The detecting officer has not drawn sample at the place of occurrence. He produced the can containing the arrack before the Court. PW4, the property clerk of the Court had drawn the sample from the bulk quantity of the contraband substance produced before the Court as per the instructions of the learned Magistrate. The learned counsel for the appellant contended that drawing of sample by the property clerk from the contraband produced by the investigating Officer has no sanction of law. In **Baburaj v. State of Kerala** [2021 (6) KHC 92] this Court considered the legality of the act of drawing sample by the property clerk of the Court. In **Baburaj v. State of Kerala** [Supra], this Court held thus:- “35. Drawing the sample and sealing the same ``` CRL.A NO. 865 OF 2008 ``` ..7.. are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of fnal report laid by the investigating oficer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala** [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala** [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting oficer. “ 12. In **Baburaj v. State of Kerala,** this Court further held that as the procedure adopted in drawing the ``` CRL.A NO. 865 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** sample from the contraband substance has no sanction of law, the genuineness of the sample forwarded to the Chemical Examiner’s Laboratory is doubtful and no evidentiary value can be given to the Certificate of Chemical Analysis obtained on the basis of the sample so drawn. Therefore, in the present case, Ext.P7 Certificate of Chemical Analysis, has no evidentiary value. 13. It is further contended that the prosecution failed to show that the specimen of the seal affixed on the sample containing the bottle was forwarded to the Chemical Examiner’s Laboratory for facilitating the analyst to verify the genuineness of the sample produced for analysis. 14. In **Rajamma v. State of Kerala** [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, ``` CRL.A NO. 865 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** no evidentiary value can be attached to the Chemical Analysis Report. 15. The resultant conclusion is that the prosecution failed establish the link connecting the accused with the contraband seized. Therefore, the conviction and sentence passed against the accused cannot be sustained. The accused is found not guilty of the offence alleged. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. **Sd/K. BABU, JUDGE** kkj