Vikraman s/o Bhaskaranu Bhaskaran vs The Circle Inspector of Police, Varkala Police Station & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **CRL.A.No.785 OF 2005** **AGAINST THE JUDGMENT IN SC NO. 786/2001 DATED 30.04.2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC) NO.II, THIRUVANANTHAPURAM** ## **AGAINST THE JUDGMENT IN CP NO. 106/2000 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VARKALA.** ## **APPELLANT/3RD ACCUSED:** **VIKRAMAN S/O. BHASKARAN , SARADADEEPAM VEEDU, REGHUNADAPURAM, CHERUKUNNAM DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.K.P.DANDAPANI (SR.)** ## **RESPONDENT/COMPLAINANT & STATE:** ||**1**|**THE CIRCLE INSPECTOR OF POLICE**<br>**VARKALA POLICE STATION.**| |---|---|---| ||**2**|**STATE OF KERALA REPRESENTED BY**<br>**PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**| |||**R2 BY SR.PUBLIC PROSECUTOR SRI. B.JAYASURYA**| **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.785 of 2005 2** ## J U D G M E N T The above appeal is filed by the 3[rd] accused in Crime No.163 of 1999 of Varkala Police Station, who is the sole accused in Sessions Case No.786 of 2001 on the file of the Additional Sessions Judge, Fast Track (Adhoc)No.II, Thiruvananthapuram. The appellant and 4 others were charge sheeted by the Circle Inspector of Police, Varkala alleging offence punishable under Section 8(2) of the Abkari Act. The 1[st] and 2[nd] accused in the original charge sheet are the licensees of T.S. No.35 of Varkala Range for the period 1999-2000. Accused Nos. 3 to 5 were the persons who are alleged to be possessed and sold arrack from the said toddy shop. 2. The Prosecution case is that the Police Officer received reliable information that arrack is being vended in T.S. No.35 of Varkala Range at Puthenchantha. Based on such information, PW5 Circle Inspector of Police, Varkala searched the said toddy shop in the presence of PW1 and PW2 at about 7 p.m. on 10.5.1999 after sending Ext.P1 search memo to the Judicial First Class Magistrate, Varkala. The detecting officer seized 375 covers of arrack kept in polythene covers(each cover containing 150 ml.arrack), 108 empty plastic covers, one glass, one scissor with rose handle, and currency notes of various denominations for the value of Rs.1380/- from the shop. The seized articles are described in Ext.P2 search list. Accused Nos.3 to 5 were arrested from the spot. **CRL.APPEAL No.785 of 2005 3** 3. The case against the 1[st] accused was split because he was absconding. The case against accused Nos.2,3,4 and five were committed to the Sessions Court. After that, the case against the 4[th] accused was split from the Sessions Court. Accused Nos. 2,3 and 5 faced trial. The case of third accused and the other accused were committed separately, and the cases were numbered as S C No. 727/2001 and S C No.786/2001. Subsequently, both cases are clubbed and tried together. The trial court acquitted accused Nos. 2 and 5 and convicted the 3[rd] accused, who is the appellant in this appeal. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P12 are the documents marked on the side of the prosecution. One witness was examined on the side of the defence as DW1. MO1 to MO6 are the material objects. After going through the evidence and documents, the trial court convicted the appellant/3[rd] accused under Section 8(2) of the Abkari Act. The 3[rd] accused is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for a further period of 6 months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 5. Heard the learned Senior Counsel Sri.K.P.Dandapani appearing for the appellant and the learned Public Prosecutor. 6. The learned Senior Counsel submitted that, even if the entire allegations against the appellant are accepted, the offence under Section 8(2) of the Abkari Act is not made out. The learned Senior Counsel contended that, a perusal of Ext.P2 search list would not show that the sample covers **CRL.APPEAL No.785 of 2005 4** seized were sealed from the spot. The Senior Counsel also submitted that, when the sample packets were produced before the court as per Ext.P4 property list, it is stated in the property list that, the sample covers are sealed. Thereafter, when the Analyst received this sample, the Analyst recorded that, he received _“one sealed packet having 3 polythene covers marked 1 to 3 in the laboratory each containing 150 ml. of a clear and colourless liquid alleged to be arrack…….”_ . The Senior Counsel also pointed out that, in Ext.P5 forwarding note, it is not mentioned that, the person through whom the samples were sent to the Chemical Analyst. In a nutshell, the argument of the Senior Counsel is that there is no evidence to show that the seized articles were reached in the hands of the Analyst. For that simple reason, the Senior Counsel submitted that, the appellant is entitled the benefit of doubt. The Senior Counsel relied on several decisions of this court to strengthen his contentions. 7. The learned Public Prosecutor submitted that, in the light of the oral and documentary evidence, the offence under Section 8(2) of the Abkari Act is proved against the appellant/3[rd] accused and there is nothing to interfere with the well considered judgment of the trial court. 8. After hearing both sides, the point to be considered in this case is whether the appellant/3[rd] accused committed the offence under Section 8(2) of the Abkari Act. 9. According to the prosecution, the appellant/3[rd] accused was present in the building from where the contraband articles were seized. PW1 deposed that, as per Ext.P2 search list, he seized the contraband articles. According to PW1, 3 polythene covers containing arrack was seized for the ## **CRL.APPEAL No.785 of 2005 5** purposes of analysis. The properties were produced before the court as per Ext.P4 property list on 12.05.1999. In Ext.P4 property list, item No.9 is a sealed cover of arrack, three in number. A perusal of Ext.P2 search list would not show that the plastic packets were sealed from the spot. It is not clear, how the seized plastic covers were seen sealed when it is produced before the learned Magistrate as per Ext.P4 property list. Thereafter, Ext.P5 forwarding note was submitted by PW5 before the court for forwarding the sample for analysis. In Ext.P5 forwarding note, it is stated that three sealed packets are sent for analysis. The seal in Ext.P5 shows that, it reached the court on 31.05.1999. Thereafter, the Analyst received the same on 21.06.1999. There is no evidence to show that, in whose custody the sample, was during the period from 31.05.1999 to 21.06.1999. In Ext.P6, it is stated that, the sample was received by the Analyst through a Police Constable-7835. The name of the Police Constable is not mentioned in the Analyst report. The Police Constable is not examined in this case. 10. It is a settled position that it is the fundamental duty of the prosecution to prove that, seized contraband article reached in the hands of the Analyst. The prosecution has to prove all the links starting from seizure of the article till it reaches in the hands of the Analyst. In this case, the alleged seizure was on 10.5.1999. The sample taken from the seized contraband was sent to the court on 31.05.1999 and the Analyst received the sample only on 21.06.1999 through Police Constable-7835. The name of the Police Constable is not mentioned in the Analyst report. Further, he is not examined in this case. The prosecution has no case that, in whose custody the sample was during the ## **CRL.APPEAL No.785 of 2005 6** period from 31.05.1999 to 21.06.1999. Without examining the Police Constable- 7835, the prosecution cannot prove the same. Therefore, non-examination of Police Constable-7835 is fatal in this case. 11. Moreover, it is the duty of the prosecution to prove all the links starting from seizure of the contraband article until it reaches the chemical examiner's hands. In **Madhavan Vs. State of Kerala** (2019 (4) KLT 18), this court observed like this: _“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey Crl.A.No.2785/2008 10 v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”_ In the light of the dictum laid down by this court in the above judgments, it is clear that, the prosecution has to prove all the links starting from the seizure of the article till it reaches in the hands of the Analyst. As the prosecution failed to prove the above, the benefit of the doubt will go to the appellant. 12. Moreover, the forwarding note is silent with regard to the name of the person through whom the sample was sent. It is alleged that, in Ext.P5 forwarding note, the name of the person who took the sample to the Chemical **CRL.APPEAL No.785 of 2005 7** Examiner is not mentioned. The relevant portion of Ext.P5 is extracted hereunder: “Form to be used when exhibits seized under Abkari Act 1077 Kerala Abkari Shops (Disposal in Auction) Rules 1974. Rule 7 of Chapter v and Rule 8 of Sub rule (2) of Chapter VII are forwarded to the Chemical Examiner to Government. From D. രരജജ(നന ജപരലലസസസരകലളഇനസസപപകര വരകല To The Chemical Examiner to Government, Chemical Examiner's Laboratory, Thiruvananthapuram -635001. Sir, I request you to arrange for the material objects sent through the P.C.T...................................... being subjected to chemical analysis and report whether they contain ethyl alcohol as prescribed in the Abkari Act (25 up-42 Br./v) and the necessary certificate issued to me. Yours faithfully, Sd/- D. രരജജ(നന ജപരലലസസസരകലളഇനസസപപകര വരകല “ A perusal of the above forwarding note, it can be seen that, the person through whom the material object is forwarded to the Analyst is not mentioned in it. That portion is kept blank. 13. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst is not examined. This Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718] held as follows: ## **CRL.APPEAL No.785 of 2005 8** _“There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled the benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."_ 14. Moreover, the arrest memo is not produced in this case. In ## **CRL.APPEAL No.785 of 2005 9** ## **Ramankutty v. Excise Inspector, Chalannur Range** [2013 (3) KHC 308], this court observed the relevancy of arrest memo in Abakri cases. The relevant portion of the judgment is extracted hereunder: _"7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in D.K. Basu v. State of West Bengal. The specific case of the prosecution is that the Revision Petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision Petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in D.K.Basu's case. It is apposite to have a look at the said directions of the Supreme Court which read as follows:_ _"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_ ## **CRL.APPEAL No.785 of 2005 10** _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."_ _The prosecution has no case that they have complied the said directions. I am of the opinion that the non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum of arrest, beyond reasonable doubt."_ 15. In this case, also Arrest memo is not produced. In the light of the above facts, I think, the accused is entitled the benefit of doubt. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 30.04.2005 in S.C. No.786 of 2001 on the file of the Additional Sessions Court, Fast Track (Adhoc) No.II, Thiruvananthapuram, is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. Sd/- **P.V.KUNHIKRISHNAN pkk JUDGE**