Thomas @ Lalichan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 ``` ``` CRL.A NO. 705 OF 2008 ``` ``` AGAINST THE ORDER OF CONVICTION AND SENTENCE IMPOSED ON THE APPELLANT IN S.C. NO.276/2006 BY THE 3RD ADDITIONAL SESSIONS JUDGE (ADHOC – I) THODUPUZHA VIDE JUDGMENT DATED 13.03.2008 ``` ## **`APPELLANT/ACCUSED:`** ``` THOMAS @ LALICHAN S/O JOSEPH PANAPLACKAL (H), 5TH MILE KARA, CHAKKUPALLAM VILLAGE, IDUKKI DISTRICT. ``` ``` BY ADV SRI.A.MOHAMMED ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SRI.RANJIT GEORGE, SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 705 OF 2008 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the accused in S.C. No.276 of 2006 on the file of the 3[rd] Additional Adhoc – I, Thodupuzha. The aforesaid case arises from Crime No.141/2004 of Kumaly Police Station which was registered against him for the offences punishable under Section 55(a) and (i) of the Abkari Act. 2. The prosecution case is that on 21.06.2004 the appellant was found keeping in his possession, 2 ½ liters of Indian Made Foriegn Liquor in the kitchen of a tea shop with Door No.CP.VI/32 which was intended for sale and thereby committed the offences mentioned above. On the basis of the same the appellant was arrested and the articles were seized. Later he was produced before the court and articles produced. Upon completing investigation, the final report was submitted before the Judicial First Class Magistrate Court - II, Peermade, where it was taken into file as C.P. No.35/2005. After completing the legal formalities the matter was committed to Sessions Court, Thodupuzha and later the same was made over to 3[rd] Additional Sessions Judge (Adhoc – I), Thodupuzha where it was tried as S.C. No.276/2006. ``` CRL.A NO. 705 OF 2008 ``` ``` 3 ``` 3. In support of the prosecution PWs 1 to 7 were examined. Exts.P1 to P14 were marked and material objects 1 to 5 were identified. After closure of prosecution evidence, the appellant was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the course of trial were put to him, which he denied. In defence DW1 was examined. 4. After evaluating the material available on record, the learned Sessions Judge arrived at the finding that the appellant is guilty and accordingly he was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.1 lakh with a default sentence of simple imprisonment for one month for the offences under Section 55(i) of the Abkari Act. This appeal is filed challenging the aforesaid order of conviction. 5. Heard Sri.A.Mohammed, learned counsel appearing for the appellant and Sri.Ranjit George, learned Public Prosecutor appearing for the State. 6. The learned counsel for the appellant submitted that the prosecution case and the order of conviction entered by the Sessions ``` CRL.A NO. 705 OF 2008 ``` ``` 4 ``` Court are not legally sustainable. It is contended that, the prosecution could not prove the fact that the liquor was seized from the possession of the appellant and the same was kept for sale. It is pointed out that the prosecution case was to the effect that, when the inspection was conducted in the tea shop, PW7 could find that a person was serving some liquor in a glass to another person and collecting money. According to the learned counsel for the appellant, it is not stated in his deposition that it was the appellant who had served the said liquor to the other person. It is also not proved by the prosecution that, the article served to the other person was liquor, as the glass which was used for serving the said liquor was not subjected to chemical analysis. In addition to the above, serious discrepancies were pointed out with respect to the arrest also, by specifically bringing my attention to Ext.P8 arrest memo. The basic dispute raised by the learned counsel in this regard is with respect to time and place of arrest. Another contention of the learned counsel for the appellant is that, there are serious lapses on the part of the prosecution to prove the safe custody of the articles right from the seizure of the same and till it reached at the hands of the ``` CRL.A NO. 705 OF 2008 ``` ``` 5 ``` chemical analyst. By placing reliance upon Ext.P7 property list, it was pointed out that, as per the endorsements contained therein, the articles were returned to the possession of PW7 on 23.06.2004, but the same was forwarded for chemical analysis only on 26.06.2004. Therefore there is a complete lack of explanation as to the proper custody of the sample during the period from 23.06.2004 till 26.06.2004. Another contention put forward by the learned counsel is with respect to conscious possession of the article by the appellant. According to the learned counsel for the appellant, even going by the deposition of PW7, in his chief examination, it is evident that the tea shop from where the contraband articles were allegedly seized were taken for rent by the father of the appellant. In such circumstances, the possession over the building in question is not properly proved by the prosecution to be that of the appellant, contends the learned counsel. Another contention of the learned counsel for the appellant is regarding the discrepancies in the examination of the appellant under Section 313 Cr.P.C. My attention was specifically brought to the contents thereof which would indicate that all the incriminating materials brought out during the ``` CRL.A NO. 705 OF 2008 ``` ``` 6 ``` course of trial were not specifically and separately put to the appellant but instead the contents of the evidence alone were put to him. Based on the aforesaid contentions, the learned counsel for the appellant seeks for interference in the matter. 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions and would submit that the evidence of the official witnesses coupled with the contemporaneous documents such as seizure mahazar, arrest memo and forwarding note as well as chemical analysis report would clearly establish the guilt of the accused. In such circumstances, the learned Public Prosecutor prays for dismissal of the appeal. 8. The first contention that has been raised by the learned counsel is with regard to the arrest of the appellant. Ext.P8 is the arrest memo. It is evident from the arrest memo that, the place of arrest is mentioned as only as “6[th] mile” and the exact location is not specified. In addition to the same, the arrest memo contains the crime number as 141/2004. It is discernible from the arrest memo that the arrest was affected at 7.10 p.m. on 21.06.2004, whereas the First Information ``` CRL.A NO. 705 OF 2008 ``` ``` 7 ``` Report was registered at 21.30 hours on 21.06.2004 which was after the arrest. In such circumstances, mentioning of crime number in the arrest memo is fatal to the prosecution. The aforesaid aspect was considered by this Court in decision **Santhosh v. State of Kerala [ 2021 (5) KHC 214]** . In the said decision, after placing reliance upon the decisions in **Karunakar Bindhani v State of Kerala [2017 (10 KLD 48]** and **Rafeeque v. Sub Inspector of Police , Kunnamkulam Police Station and another [2020 (4) KLT 188],** it was held by this court that, in the absence of any explanation offered by the prosecution with regard to the presence of the crime number in arrest memo, a doubt arises as to the manner in which seizure and arrest were effected. In addition to the above, exact place of arrest is also not discernible from the aforesaid documents. In such circumstances, there is some serious discrepancy as to the arrest of the appellant. 9. Another contention is with regard to the lack of evidence indicating the tamper proof custody of the sample right from the date of arrest till the same was subjected to chemical analysis. In **Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569]** it was held ``` CRL.A NO. 705 OF 2008 ``` ``` 8 ``` that, merely because of the reason that the chemical analysis report supports the prosecution case it cannot be concluded that the prosecution has succeeded in establishing the guilt. On the other hand, the prosecution has an obligation to prove that the sample which was subjected to chemical analysis was the same sample drawn from the contraband article seized from possession of the accused. In order to establish the same every sequence of events, right from the seizure till it reaches the chemical analyst are to be proved by the prosecution. When I consider the materials available on record in that point of view certain glaring discrepancies can be found. Firstly, Ext.P1(a) mahazar does not contain the impression of specimen seal claimed to have been affixed on the sample drawn from the contraband article seized from the possession of the appellant. The same does not contain the description of the said seal as well and no explanation for the same is seen offered by the detecting officer as well. In **Moothedath Sivadasan and another v. State of Kerala [2021 (1) KLT 744]** the aforesaid aspect was specifically considered by this Court and held that the same is a serious lacuna on the part of the prosecution. This is yet another aspect ``` CRL.A NO. 705 OF 2008 ``` ``` 9 ``` which goes in favour of the appellant. 10. Another contention of the learned counsel for the appellant is regarding the lack of substantive evidence in support of the prosecution case regarding the sale of Indian Made Foreign Liquor which allegedly occurred in the tea shop. It is true that PW7 has stated that when he conducted inspection in the premises he found a person serving a liquid by pouring it into a glass to another person and collecting money. However, PW7 has never stated that the aforesaid act was done by the appellant. In addition to the above, there is no substantive evidence indicating that what was served to the other person for consideration, was Indian Made Foreign Liquor. In order to substantiate the same, the glass which was used for serving liquor, even though was seized by PW7 it was never subjected to chemical analysis. This is yet another aspect, which goes against the prosecution. 11. Next aspect is relating to possession of the tea shop from the contraband articles were seized from the appellant. I have already found there are serious discrepancies in the prosecution case with regard to the arrest of the appellant from the tea shop. In the light of the ``` CRL.A NO. 705 OF 2008 ``` ``` 10 ``` above finding, the only other material which is available on record to prove conscious possession of the articles by the appellant is the evidence of PW5 who is the Secretary of to Grama Panchayat concerned and Ext.P5 ownership certificate. However, the aforesaid document would not show that the said building was occupied by the appellant herein. But on the other hand, in the chief examination of PW7 it is stated that the room where the tea stall was being conducted was taken on rent by the father of the appellant. Thus there is no clear evidence as to the possession of the appellant over the room from where the contraband articles were allegedly seized. In such circumstances, the possession of the appellant over the tea shop is also a matter which is in doubt. 12. Another contention of the learned counsel for the appellant is regarding the lack of evidence as to the tamper proof condition of the sample during the period from 23.06.2004 to 26.06.2004. Ext.P7 is the property list and the endorsements therein would indicate that the articles were returned to PW7 on 23.06.2004 for keeping it in safe custody. Ext.P13 chemical analysis report would indicate that they ``` CRL.A NO. 705 OF 2008 ``` ``` 11 ``` have received the sample on 26.06.2004. During the said period, admittedly the sample was entrusted to the possession of PW7 and there is absolutely nothing mentioned by PW7 as to its safe custody. This is yet another aspect which makes the appellant eligible to get benefit of doubt, as the evidence for tamper proof condition of the articles are lacking. 13. Another contention of the learned counsel for the appellant is regarding the discrepancies in examining the appellant under Section 313 of Cr.P.C. On going through the statement under Section 313, it can be seen that, the incriminating materials brought out during the course of investigation were not specifically put to the appellant. On the other hand, a brief description of the aforesaid evidence alone was put to him. The aforesaid aspect is a crucial lacuna in the prosecution case, as observed by the hon’ble Supreme Court in **[Ranvir Yadav v. State Of Bihar [AIR 2009 SC (suppl) 1439]** and **State of Punjab v.** . **Hari Singh [AIR 2010 SC 1966]** 14. In the light of principles mentioned above, the only conclusion possible is that the exercise of examining the appellant ``` CRL.A NO. 705 OF 2008 ``` ``` 12 ``` under Section 313 Cr.P.C. was also not proper and in tune with the statutory requirements, as the incriminating materials brought out during the courts of trial were not specifically put to him. It is a well settled position of law that examination of an accused under Section 313 of Cr.P.C. is not an empty formality but on the other hand each and every incriminating materials have to be specifically brought to the attention of the accused and his the response should be obtained. Lapses in complying with the said condition cannot be treated lightly. 15. Thus when I consider the entire prosecution case and the supporting materials, the only conclusion possible is that the prosecution failed in establishing the guilt of the accused. On going through the findings and observations of the Sessions Court it is seen that proper appreciation of the aforesaid aspects were not done and it was proceeded as if the burden was upon the appellant to establish his innocence. Considering the facts and circumstances of the case, I am of the view that the said approach was not proper and hence the aforesaid findings are liable to be interfered with. 16. Accordingly, I hold that the finding of conviction and ``` CRL.A NO. 705 OF 2008 ``` ``` 13 ``` consequential sentence imposed upon the appellant are liable to be interfered with. In the result, this appeal is allowed. The order of conviction and sentence imposed on the appellant as per judgment dated 13.03.2008 in S.C. No.276/2006 passed by the 3[rd] Additional Sessions Judge (Adhoc – I), Thodupuzha is hereby set aside. The appellant is acquitted of all the charges and his bail bond shall stand cancelled. ## **`Sd/-`** ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS