Thankayyan (Thankan) v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **CRL.A NO. 1423 OF 2007** **AGAINST THE JUDGMENT IN SC 1408/2001 OF ADDITIONAL SESSIONS COURT FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 236/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,** ## **NEYYATTINKARA** ## **APPELLANT/ACCUSED:** THANKAYYAN (THANKAN), S/O LAZAR, ANAMUGAM KODITHARA PUTHEN VEEDU, KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SMT. REKHA.S. (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1423 of 2007 2 K.BABU, J. -------------------------------------Criminal Appeal No.1423 of 2007 --------------------------------------Dated this the 27[th] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 30.06.2007, passed by the Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara in S.C.No.1408/2001, the appellant/accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.11.1999 at about 4.00 p.m., the appellant/accused was found in possession of 7 litres and 375 ml of arrack at Kunnathukal Desom in Kunnathukal Village. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 58 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, charge was framed against him for the offence Crl.A No.1423 of 2007 3 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 6 and proved Exts.P1 to P8 and MOs 1 and 2. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. G.P.Shinod, 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: (i) The arrest of the accused as alleged by the Crl.A No.1423 of 2007 4 prosecution is doubtful. - (ii) The act of drawing sample by the property clerk of the Court as per the instruction of the jurisdictional Magistrate has no sanction of law. - (iii) The prosecution failed to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The case of the prosecution is that the accused was arrested along with the contraband substance on 25.11.1999. 9. The defence disputes the arrest of the appellant. 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 Crl.A No.1423 of 2007 5 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 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. 10. 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 arrest by the officer who arrested the accused. Therefore, the prosecution case built upon the foundation that the accused is arrested while possessing the contraband substance would fall to ground. The non-compliance with the mandatory requirements regarding arrest Crl.A No.1423 of 2007 6 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 ground. 11. 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 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 highly doubtful. 12. Admittedly, at the place of occurrence no sample was drawn by the detecting officer. The cans containing illicit arrack were produced before the Court. PW6, the property clerk of the Court as per the instructions of the learned Magistrate had drawn sample from the bulk quantity of the arrack produced before the Court and forwarded the same to the laboratory. The defence challenges the sanctity of the act of drawing sample by the Crl.A No.1423 of 2007 7 property clerk. 13. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] considered the legality of drawing sample by the property clerk. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or Excise official concerned. The relevant portion of the judgment in Baburaj (supra) is extracted below: “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 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 Crl.A No.1423 of 2007 8 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 officer.” 14. In Baburaj's case (supra) this Court further held that as the procedure adopted in drawing sample from the contraband substance by the property clerk is not a procedure established by law, no evidentiary value can be given to the Certificate of Chemical Analysis obtained based on the sample so drawn. On this ground alone, the prosecution must fail. 15. The genuineness of the arrack produced before the Court is also under challenge. The detecting officer had not narrated the nature and description of the seal stated to have been affixed on the cans containing the arrack in Ext.P1 seizure mahazar. He had not given evidence as to the nature of the seal used. In the absence of any evidence that the specimen of the seal used was produced before the Court, the officer concerned was unable to ascertain the genuineness of the properties produced before the Court. 16. In Bhaskaran K. v. State of Kerala and another (2020 KHC 9 Crl.A No.1423 of 2007 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 sample produced in the Court. 17. In the instant case, the prosecution has failed to establish that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Exhibit P6 Certificate of Chemical Analysis has no evidentiary value. 18. 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. 19. 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 Crl.A No.1423 of 2007 10 seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 20. 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. 21. 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. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS