Thilakan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944** ## **CRL.A NO. 2456 OF 2008** **SC 979/2007 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACT-I,** ## **THRISSUR** ## **APPELLANT/ACCUSED** THILAKAN, S/O VELAYUDHAN, KALAPURAKKAL HOUSE, MATTATHUR VILLAGE, CHEMBUCHIRA. BY ADV A.C.DEVY ## **RESPONDENT/STATE** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31. BY SMT.REKHA S,SR PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.2456/2008 2 K.BABU, J. -----------------Crl.A.No.2456 of 2008 ----------------------Dated : 5[th] July, 2022 ## JUDGMENT 1. Aggrieved by the judgment dated 25.9.2008, passed by the Additional Sessions Court, (Adhoc) Fast Track Court No.I, Thrissur in Sessions Case No.979 of 2007 the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.04.2005 at 5.30 pm, the appellant/accused was found in possession of ten liters of arrack at his residence bearing No.XVIII/264 of Mattathur panchayat, 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 the Sessions Court from where it was made over to the trial Court. On the appearance of the Crl.A.No.2456/2008 3 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 6 and proved Exts.P1 to P8 and MO1. 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 them thereunder. 6. Heard Sri.A.C.Devy, the learned counsel appearing for the appellant/accused and Smt.Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the following grounds : Crl.A.No.2456/2008 4 - (a) The arrest of the accused along with the contraband liquor in the place of occurrence as alleged by the prosecution is doubtful. - (b) The prosecution failed to show that the liquor allegedly seized from the place of occurrence reached the Chemical Examiner's Laboratory. 8. According to the prosecution, on 9.4.2005 at 5.30 pm accused was arrested by PW6, the Sub Inspector of police, Vellikkulangara police station from his residence. The learned defence counsel contended that the prosecution has not established the arrest of the accused from his residence, as alleged, beyond reasonable doubt. The learned counsel submitted that as the arrest memo and arrest intimation were not prepared and produced before the Court, prosecution allegation that the accused was arrested from the scene of occurrence cannot be believed. 9. 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 our the arrest of the arrestee shall prepare a memo of arrest at Crl.A.No.2456/2008 5 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 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 the alleged arrest. The prosecution case has been built upon the foundation that the Crl.A.No.2456/2008 6 accused was arrested while possessing the contraband substance. The non-compliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. Where the prosecution has failed to establish arrest being reasonable doubt, the entire case set up by the prosecution falls to the 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 doubtful. 12. The learned counsel for the appellant further contended that the prosecution had also failed to show the genuineness of the sample produced before the Court and forwarded to the Laboratory. The learned counsel relied on the following circumstances to substantiate his contentions :- Crl.A.No.2456/2008 7 - (a) The delay in production of properties, including sample, has not been satisfactorily explained by the prosecution. - (b) There is nothing to show that the specimen seal was forwarded to the Chemical Examiner's Laboratory. 13. Though the seizure was effected on 09.04.2005, the properties including the sample were produced before the Court only on 11.5.2005. The prosecution has no proper explanation for the delay in the production of sample before the Court. 14. In **Ravi v. State of Kerala (2011 (3) KHC 121),** on the question of delay in production of properties, a Division Bench of this Court held thus : “8. We, therefore, answer the reference as follows : It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (whereever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” 15. in **Ravi's** case (supra) the Division Bench held that production of properties before the Court should take place Crl.A.No.2456/2008 8 without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 16. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out. 17. Ext.P7 copy of the forwarding note shows that no specimen of the seal was incorporated therein. Therefore, the prosecution has not succeeded in establishing that the specimen seal was forwarded to the Laboratory for facilitating the Examiner to verify the genuineness of the sample produced. In **Rajamma v. State of Kerala [2014 (1) KLT** ## **506]** , this Court held thus : - “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, no evidentiary value can be attached to the chemical analysis report.” 18. The sample remained in the custody of the property clerk till 27.6.2005. Ext.P8 Certificate of Chemical Analysis Crl.A.No.2456/2008 9 shows that the sample reached the Laboratory on 28.6.2005 through a Police Constable No.4958. The prosecution has not given evidence as to the name of the official with whom the sample was forwarded to the Laboratory. The property Clerk of the Court and Police Constable No.4958 were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)** . 19. Another aspect is the delay in the analysis of the sample. Though the sample reached the Laboratory on 28.6.2005, the sample was subjected to analysis only on 24.1.2007. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Crl.A.No.2456/2008 10 Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analyzed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 20. In the instance case, the delay of more than a year in analysing the sample has not been explained by the prosecution. As the prosecution failed to establish that the liquor allegedly seized from the place of occurrence was analyzed in the Chemical Examiner's Laboratory, Ext.P8 has no evidentiary value. Therefore, the conviction and sentence passed against the accused cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. Appeal is allowed. Sd/- ## **K.BABU, Judge** Mrcs