Thankappan 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. 2976 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 1383/2001 OF ADDITIONAL DISTRICT** **COURT (ADHOC) III, TRIVANDRUM** ## **APPELLANT/ACCUSED:** THANKAPPAN,S/O CHELLAYYAN, KUNNINPARA VEEDU, PANNIMALA, VELLARADA DESOM, VELLARADA, VILLAGE. BY ADV BIJU .C. ABRAHAM ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.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. 2976 of 2008 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.2976 of 2008 --------------------------------------Dated this the 7[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 29.11.2008, passed by the Additional Sessions Court,(Fast Track-III), Thiruvananthapuram in Sessions Case No.1383/2001, the accused has preferred this appeal. The appellant/ accused was convicted under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 20.12.1999 at 5.30 p.m the accused was found in possession of 3 litres of arrack at Pannimala, Kunninpara 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 55(a) of the Abkari 3 Crl.A No. 2976 of 2008 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 charge was framed against him for the offence punishable under Section 58 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 5 and proved Exts P1 to P9 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, the 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 Crl.A No. 2976 of 2008 4 the offence under Section 58 of the Abkari Act and convicted him thereunder. 6. Heard Sri.Biju C. Abraham, 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/accused challenged the judgment of conviction and sentence on the following grounds. a) Arrest of the accused as alleged by the prosecution is doubtful. b) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's laboratory. 8. The alleged seizure and arrest were effected on 20.12.1999 by the Sub Inspector of Police, Vellarada Police Station (PW5). 9. The learned counsel for the appellant disputed 5 Crl.A No. 2976 of 2008 the arrest of the accused relying on the presence of the crime number in Ext.P5 arrest memo. 10. This Court in **Santhosh v. State of Kerala** [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 Crl.A No. 2976 of 2008 6 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)** ].” 11. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P5 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 12. In the present case, no sample was drawn by the detecting officer at the scene of occurrence. He produced the contraband substance containing 3 litres of illicit arrack in a 5 litre Can before the Court. No specimen seal, stated to have been affixed on the Can containing the illicit arrack, was produced before the Court to ensure the genuineness of the contraband substance. 13. In **Bhaskaran v. State of Kerala (** 2020 KHC Crl.A No. 2976 of 2008 7 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 Court so as to enable the Court to satisfy the genuineness of the substance produced in the Court. 14. In the present case the sample was drawn by the property clerk of the Court (PW4) as per the instructions of the learned Magistrate. Drawing of the sample and sealing the same are acts within the exclusive province of the detecting officer. 15. This Court had an opportunity to consider these aspects in **Baburaj v. State of Kerala** [2021 (6) KLT 416]. This Court in **Baburaj** (supra) held thus: “35. Drawing the sample and sealing the same 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 Crl.A No. 2976 of 2008 8 prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final 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 final report laid by the investigating officer 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 Crl.A No. 2976 of 2008 9 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 officer.” 16. In **Baburaj** (supra) this Court concluded that as the procedure adopted in drawing the sample from contraband substance by the property clerk of the Court has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis prepared based on the sample so drawn. 17. Moreover, the prosecution also failed to establish the tamper-proof despatch of the sample from the Court to the laboratory as there is nothing to show that the specimen seal was forwarded to the laboratory to facilitate the analyst to ascertain the genuineness of the sample. 18. The prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the possession of the accused was Crl.A No. 2976 of 2008 10 subjected to analysis in the Chemical Examiner's Laboratory. The resultant conclusion is that Ext.P8, Certificate of Chemical Analysis has no evidentiary value. 19. In **Vijay Pandey v. State of U.P.** (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself. The sample seized and tested have to be corelated. 20. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample 11 Crl.A No. 2976 of 2008 analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 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 appellant/accused is, therefore, not guilty of the aforesaid offence. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk