Unnikrishnan v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944 ``` ``` CRL.A NO. 474 OF 2006 ``` ``` AGAINST THE ORDER IN SC 171/2000 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA ``` ``` CP 56/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA ``` ## `APPELLANT/ACCUSED:` ``` UNNIKRISHNAN S/O.GOPALAKRISHNA PILLAI, MURALEE SADANAM, THEVANOOR MURI, VALAKOM VILLAGE. ``` ``` BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## `OTHER PRESENT:` ``` SMT. REKHA,GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A 474 of 2006 2 ## **BABU, J.** ------------------------------------ ## **CRL.A 474 OF 2006** ------------------------------------ **Dated this the 8[th] day of December, 2022** ## **JUDGMENT** Aggrieved by the judgment dated 16.02.2006, passed by the Additional Sessions Court (Abkari), Kottarakkara in S.C.No.171/2000, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 18.7.1998 at 10.45 am, the accused was found in possession of 31 litres of arrack in two samovars in a building situated in Sy No.168/1D/20/27 of Edamulackal village, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under CRL.A 474 of 2006 3 Sections 55(a), 55(i) and 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 accused, charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P6, and MOs 1 to 6, MO 7 series, MOs 8 and 9.. 5. After the closure of the prosecution evidence, 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. CRL.A 474 of 2006 4 6. Heard Sri. Bindu Sasthamangalam, 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 ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was not subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: - (i) The delay in the production of properties including the - sample has not been satisfactorily explained by the prosecution. (ii) Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (iii) The specimen of the seal was not produced before the Court to ensure the genuineness of the sample. CRL.A 474 of 2006 5 (iv) The forwarding note/requisition for sending the sample was not produced and marked. (v) There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verification. 9. The alleged seizure was effected on 18-07-1998. Ext.P4 property list shows that the sample was produced before the Court only on 20-07-1998. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. In **Ravi v. State of Kerala** [2011 (3) KHC 121], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. 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.PC 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 (wherever it is practicable) should also take place without There should be unnecessary delay. explanation for the delay when there is delayed production of the property.” CRL.A 474 of 2006 6 (Emphasis supplied) **In Ravi's case (supra)** the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 10. 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 samples could not be ruled out. 11. At the time of sampling, the detecting officer had prepared Ext.P2 seizure mahazar. He had not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. 12. The specimen of the seal was not produced before the Court to ensure the genuineness of the sample. The requisition for sending sample/ forwarding note was not produced and marked. There is no evidence to show that the specimen of the seal was CRL.A 474 of 2006 7 forwarded to the Chemical Examiner’s Laboratory so as to ascertain the genuineness of the sample produced for examination. 13. 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. 14. 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. 15. In **Ramachandran v. State of Kerala** **(MANU/KE/3804/2020 : 2021 (1) KLT 793)** while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the CRL.A 474 of 2006 8 prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 16. The sample was forwarded to the laboratory as per the letter dated 29-10-1998 of the JFMC-II, Kottarakkara. The sample reached the laboratory only on 30-10-1998. The sample was delivered through a Police Constable No. 4180. Neither the property clerk of the Court nor the police constable who delivered the sample in the laboratory was examined by the prosecution. 17. 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 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 CRL.A 474 of 2006 9 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 reemphasized 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)** 18. In the present case, the prosecution failed to establish the chain of custody of the contraband commencing from the place of occurrence to the stage when the same reached the laboratory. CRL.A 474 of 2006 10 19. Yet another aspect, canvassed by the learned counsel for the accused/appellant that the prosecution failed to establish the arrest as pleaded. In **D.K. Basu v. State of West Bengal M (1997** **(1) KLT SN 54 (C. No. 71) SC : (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 CRL.A 474 of 2006 11 attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 20. 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. 21. This Court in **v. Excise Ramankutty Inspector, Chelannur Range (2013 (3) KLT SN 83 (C. No. 83) : 2013 (3) KHC 308)** had considered a similar fact situation. This Court held that non-compliance of mandatory requirements to be complied CRL.A 474 of 2006 12 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. 22. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analyzed in the laboratory. Therefore, the accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 23. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU JUDGE** mtk