Udaya Singh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 CRL.A NO. 1326 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 655/2007 OF ADDITIONAL DISTRICT COURT (ADHOC)-IV, THIRUVANANTHAPURAM ``` ## **`APPELLANT/ACCUSED:`** ``` UDAYA SINGH, S/O. BENNIS, THADATHARIKATHU VEEDU, ADIPARAMBU,KOTTAKKAKOM MURI, VITHURA VILLAGE, NEDUMANGAD 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. BYSMT. REKHA.S (SR.P.P) ``` ## **`OTHER PRESENT:`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1326 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 06.07.2007, passed by the Additional Sessions Court [Fast Track No.IV], Thiruvananthapuram in Sessions Case No. 655/2007, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 31.07.2001 at 5 p.m. the accused was found in possession of 8½ litres of illicit arrack at Adiparambu 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 ``` CRL.A NO. 1326 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** trial court. On the appearance of the 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 5 and proved Exts. P1 to P6 and MOs 1 to 4 series. 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 to 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 he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay ``` CRL.A NO. 1326 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. 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 challenged the judgment of conviction and sentence on the following grounds:- (i) The prosecution failed to establish the genuineness of the contraband substance, allegedly recovered from the place of occurrence and produced before the Court. (ii)Drawing of the sample by the Property Clerk of the Court as per the directions of the learned Magistrate has no sanction of law. (iii)The prosecution failed to establish the tamperproof despatch of the sample to the laboratory. (iv)The arrest of the accused as alleged by the Prosecution is also doubtful. ``` CRL.A NO. 1326 OF 2007 ``` ..5.. 8. The alleged seizure was effected by PW5, Sub Inspector of Police, Vithura Police Station on 31.07.2001. According to PW5, the accused was arrested from the place of occurrence along with the contraband substance. The properties seized from the possession of the accused was produced before the Court on 01.08.2001. Admittedly, the specimen of the seal used by the detecting officer at the scene of occurrence was not produced before the Court to ensure the genuineness of the contraband substance seized on 01.08.2001. 9. 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 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. 10. The detecting officer had not drawn the sample at the place of occurrence. PW4, the Property Clerk of the Court had drawn the sample from the bulk quantity of ``` CRL.A NO. 1326 OF 2007 ``` ..6.. the liquor produced before the Court as per the instructions of the learned Magistrate. The legality of the act of the learned Magistrate directing the officials of the Court to draw the sample from the contraband substance produced before the Court was considered by this Court in **Baburaj v. State of Kerala** [2021(6) KLT 416]. In **Baburaj’s case** [Supra], this Court 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 prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal 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 fnal report laid by the investigating oficer 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 ``` CRL.A NO. 1326 OF 2007 ``` ..7.. 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 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 oficer.” 11. In **Baburaj’s case** [Supra], this Court further held that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis. 12. The defence also challenges the genuineness of the sample, drawn as per the instructions of the Magistrate, that reached the laboratory. It is contended that there is nothing on record to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory to ascertain the genuineness of the sample forwarded to the laboratory. Ext.P4, copy of the forwarding note, does not contain the specimen of the ``` CRL.A NO. 1326 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** seal used. The name of the official with whom the sample was forwarded to the laboratory is also silent in Ext.P4. The sample was delivered in the laboratory through a police constable No.7920. This police official was not examined as a witness. In the absence of any evidence to show that the specimen of the seal was forwarded to the laboratory to enable the Chemical Examiner to ascertain its genuineness, no evidentiary value can be attached to the chemical analysis report. 13. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that 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. 14. The defence also challenges the arrest of the accused as alleged. In **D.K.Basu v. State of West** ``` CRL.A NO. 1326 OF 2007 ``` ..9.. **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 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. ``` CRL.A NO. 1326 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** 15. 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 accused was arrested while possessing the contraband substance. The noncompliance with the mandatory requirements regarding arrest 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 the ground. 16. This Court in **Ramankutty v. Excise Inspector, Chelannur Range** [2013 (3) KHC 308] had considered a similar fact situation. This Court held that noncompliance of mandatory requirements to be complied ``` CRL.A NO. 1326 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** 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. 17. 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. 18. 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 found not guilty of the offence alleged. In the result, ## (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed ``` CRL.A NO. 1326 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** against the accused is set aside ; - (iii) The accused is acquitted of the charge ; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj