Tharayil Appunni v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** **CRL.A NO. 2267 OF 2007** **AGAINST THE JUDGMENT IN SESSIONS CASE NO.223/2006 DATED 5TH DAY OF NOVEMBER, 2007 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)I, MANJERI** ## **DIVISION** ## **APPELLANT/ACCUSED:** **THARAYIL APPUNNI, S/O. CHAICHAN, THETTATHODI HOUSE, PALALIKKAL AMSOM,, MALAPPURAM DISTRICT. BY ADVS. T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN ALEX ABRAHAM** ## **RESPONDENT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.PP)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2267 of 2007** **2** ## **JUDGMENT** ## **Dated this the 25[th] day of May, 2022** This appeal is directed against the judgment dated 05.11.2007 in S.C.No.223 of 2005 on the file of the Additional Sessions Court (ADHOC-I), Manjeri, which arose from Crime No.52 of 2005 of Thenhipalam Police Station. The appellant is the sole accused in the crime. 2. By the impugned judgment, the appellant was convicted for the offence punishable under Section 8(2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.1,00,000/- . 3. The prosecution case is that on 25.02.2005, at about 7.30 pm., the accused was found in possession of 600 ml of arrack in a bottle on the public road at Pallikkal bazar. 4. After completing the investigation, the Thenhipalam Police submitted a final report against the appellant before the Judicial First Class Magistrate Court, Parappanangadi. The case was committed to the Sessions Court, Manjeri, from where it was made over to the Additional Sessions Judge (ADHOC-I), Manjeri, On the appearance of the accused, the Court framed charge **CRL.A.No.2267 of 2007** **3** against him. He pleaded not guilty to the charge. 5. The prosecution examined PWs1 to 7 and proved Exts.P1 to P10 series and MO1. 6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded total 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 as aforesaid. On the side of the defence, DW1 was examined. 7. Heard Sri.T.K.Sandeep., the learned counsel for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant contended that the prosecution failed to establish the link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest. The learned counsel further submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical **CRL.A.No.2267 of 2007** **4** Examiner's Laboratory. 9. The learned counsel for the appellant challenged the impugned judgment on the following grounds:- - (a) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the chemical examiner's laboratory. - (b) The prosecution has not succeeded in establishing that the appellant/accused was arrested from the scene, rendering the genesis of the prosecution doubtful. 10. Learned counsel for the appellant contended that the prosecution has not succeeded in ensuring the genuineness of the sample as Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. It is further submitted that the detecting officer and other official witnesses accompanied him have not given evidence as to the nature and description of the seal affixed on the sample. 11. I have carefully examined the seizure mahazar and the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by **CRL.A.No.2267 of 2007** **5** the detecting officer had not been mentioned either in the seizure mahazar or any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. 12. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the 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. 13. 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 condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the Chemical Examiner's laboratory is required to be established by the prosecution. 14. 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 **CRL.A.No.2267 of 2007** **6** of the Chemical Examiner in a tamper-proof 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 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).**_ 15. 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 **CRL.A.No.2267 of 2007** 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. 16. The learned counsel for the appellant disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P1 arrest memo to contend that the arrest of the accused at the spot is doubtful. Ext.P1 contains the number of the crime (52/2005) 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 and the arrest of the accused, resultantly come under cloud. (See: Karunakar Bindhani v. State of Kerala, 2016 KHC 768:2017(1)KLD 48 and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another 2020 (4) KLT 188 = 2020 (3) KHC 715)”._ **CRL.A.No.2267 of 2007** 17. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of crime number in Ext.P1 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 18. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 19. 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 offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. **K.BABU** NR/25/05/2022