VIJAYAN @ URINCHI VIJAYAN and PRABHAKARAN @ PRABHU v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945** ## **CRL.A NO. 2970 OF 2008** **AGAINST THE JUDGMENT IN SC 1638/2001 OF ADDITIONAL SESSIONS COURT,** ## **FAST TRACK-III, THIRUVANANTHAPURAM** ## **APPELLANTS/ACCUSED:** 1 VIJAYAN @ URINCHI VIJAYAN, S/O.SUKUMARA PANICKER, THODANKULAM, THADATHARIKATHU VEEDU, KOTTAKKAKAM MURI, AARYANADU VILLAGE. 2 PRABHAKARAN @ PRABHU, S/O.SREEDHARA PANICKER, UTHRAMCODE KURUVIKONAM, VADAKKUM KARA VEEDU, MANNOOR KARA MURI, AARYANADU VILLAGE. BY ADVS. SRI.GEO PAUL SRI.C.R.PRAMOD SRI.K.V.REJENISH SRI.SANU MATHEW SRI.M.B.SANDEEP SRI.NOEL JOSEPH ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, NEYYAR DAM POLICE STATION, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2970 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2970 of 2008 --------------------------------------Dated this the 30[th] day of January, 2024 ## JUDGMENT Aggrieved by the judgment dated 27.11.2008, passed by the Additional Sessions Court, Fast Track-III, Thiruvananthapuram in S.C.No.1638/2001, the appellants/accused have preferred this appeal. The appellants were convicted under Section 55(b) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years each and pay a fine of Rs.1 Lakh each. During the pendency of this appeal, appellant No.1 died. None of the near relatives of appellant No.1 turned up. As the sentence challenged is a composite sentence of fine and imprisonment, the appeal shall not abate as against appellant No.1. In view of the ratio in Ramesan (Dead) through Lr. Girija A. v. State of Kerala [(2020) 3 SCC 45] this Court is bound to decide the appeal on merits. 2. The prosecution case is that on 22.12.1999 at 12.30 p.m, the accused were found to be distilling arrack at Muthiyamkettu by keeping a barrel of about 200 litres capacity containing 3/4[th] of Crl.A No.2970 of 2008 3 wash by fitting the accessories in a fireplace. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(b) 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, charge was framed against them for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P10 and MO1 series to MO7 series. 5. After the closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the Crl.A No.2970 of 2008 4 appellants/accused for the aforesaid offence. 6. Heard Sri. Geo Paul, the learned counsel appearing for the appellants/accused and Sri. G.Sudheer, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: - (i) The arrest of the accused as pleaded by the prosecution is doubtful. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The seizure and arrest were effected by the Inspector of Police, Neyyar Dam Police Station (PW3) on 22.12.1999. The prosecution alleges that the appellants/accused were arrested along with the contraband substance. 9. The learned counsel for the appellants contended that since the arrest memos prepared by the detecting officer contain the number of crime registered against them, the arrest itself is Crl.A No.2970 of 2008 5 ## doubtful. 10. I have perused Ext.P3 series arrest memos. Arrest memos contain the crime number 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)]” 11. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P3 series arrest memos, a doubt arises as to the manner in which the seizure and arrest were effected. 12. Exhibit P1 is the seizure mahazar. The seizure mahazar Crl.A No.2970 of 2008 6 does not contain the specimen of the seal stated to have been used by the detecting officer. The detecting officer has not given evidence as to the nature of the seal used. 13. 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. 14. The prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. Exhibit P8 Certificate of Chemical Analysis shows that the samples were forwarded to the laboratory as per letter dated 15.01.2000 of the Judicial First Class Magistrate Court, Kattakada. Exhibit P8 reveals that the samples reached the laboratory only on 17.01.2000. The prosecution has not offered any explanation for the custody of the samples during the interregnum from 15.01.2000 to 17.01.2000. 15. The sample remained in the custody of the property clerk Crl.A No.2970 of 2008 7 of the Court. The samples were delivered to the laboratory by a Police Constable No.6520. These officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] . 16. In the present case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. ## 17. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 18. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample Crl.A No.2970 of 2008 8 which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275] }. 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 accused are 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 and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The conviction and sentence passed by the Court below stand set aside. In the result, the appellants are acquitted of the offence alleged. The Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS