Vasu 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. 2316 OF 2008** **AGAINST THE JUDGMENT IN SC 183/2006 OF ADDITIONAL** **SESSIONS(ADHOC)COURT-I), PALAKKAD** ## **APPELLANT/ACCUSED:** VASU, AGED 39 YEARS, VADAKKEVEEDU, MUNISWARAN KOVIL (NEAR) THENUR, PALAKKAD DISTRICT. BY ADVS. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY S.I OF POLICE, MANKARA POLICE STATION (CRIME NO.41/2004), PALAKKAD DISTRICT BY PUBLIC PROSEUCOTR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2316 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2316 of 2008 --------------------------------------Dated this the 25[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 27.09.2008, passed by the Additional Sessions (Adhoc), Court-I, Palakkad in S.C.No.183/2006, 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 1 year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 05.04.2004 at about 3.40 p.m, the appellant/accused was found in possession of 3 litres of arrack near the culvert on the Thenur-Palakkad Public Road on the eastern side of Moodarampatta Kavu in Thenur Panchayat, Palakkad Taluk. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class 3 Crl.A No.2316 of 2008 Magistrate Court-II, Palakkad. The case was committed to the Sessions Court, Palakkad from where it was made over to the 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 MO1. 5. After the closure of the prosecution evidence, 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 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. 6. Heard Sri. Rajesh Sivaramankutty, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Crl.A No.2316 of 2008 4 ## 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: - (a) The inordinate delay in the production of the sample and other articles before the Court has - not been satisfactorily explained by the prosecution. - (b) The arrest of the accused, which is the foundation of the prosecution case, is doubtful in view of the fact that the arrest memo contains - the number of crime registered against the accused. - (c) The prosecution also failed to establish the tamper-proof despatch of the sample from the place of occurrence to the laboratory through the Court. 8. The alleged seizure was on 05.04.2004. PW4, the detecting officer deposed that the articles, including the sample, were forwarded to the Court four days after the seizure. Exhibit P5, the Crl.A No.2316 of 2008 5 copy of the forwarding note shows that the sample was forwarded to the Court on 22.04.2004. The explanation on the part of PW4 for the delay in sending the properties to the Court was that he was busy with law and order duty. The explanation offered by the witness is not acceptable. 9. In Ravi v. State of Kerala [2011 (3) KLT 353], 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 unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) In Ravis' 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 Crl.A No.2316 of 2008 6 production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with sample could not be ruled out. 11. The learned counsel for the appellant disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P3 arrest memo to contend that the arrest of the accused at the spot is doubtful. Exhibit P3 contains the number of crime (41/2004) 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 758: 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.2316 of 2008 7 12. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P3 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 13. 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. 14. 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 the contraband reaches the laboratory is required to be established by the prosecution. 15. 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 8 Crl.A No.2316 of 2008 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's case (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 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's case (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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. Crl.A No.2316 of 2008 9 16. In Bhaskaran K. v. State of Kerala and another (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. 17. This Court further notices the following loopholes in the prosecution evidence: - (i) The nature and description of the seal stated to have been affixed on the bottle containing the sample had not been narrated in Ext.P1 seizure mahazar. - (ii) The detecting officer has not given evidence as to the nature of the seal used. - (iii) The sample remained in the custody of the property clerk of the Court, the Police official who received the sample from the Court and the Police official who delivered the same to the laboratory. None of these officials were examined to rule out the possibility of the sample being changed or tampered with. Crl.A No.2316 of 2008 10 18. The resultant conclusion is that Ext.P6 certificate of chemical analysis has no evidentiary value. 19. 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. The appellant/accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. 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. Sd/K.BABU, JUDGE KAS