Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 CRL.A NO. 908 OF 2008 AGAINST THE JUDGMENT DATED 07.05.2008 IN SC 421/2005 OF THIRD ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA APPELLANT/ACCUSED: RAJAN, S/O KOCHUKUNJU, MANJAMACKAL HOUSE, MURICKASSERY KARA, VATHIKUDY VILLAGE. BY ADVS. SRI.K.A.JALEEL SRI.C.ANILKUMAR KALLESSERIL RESPONDENT/COMPLAINANT:
STATE OF KERALA (REPRESENTED BY THE SUB INSPECTOR OF POLICE, MURICKASSERY, POLICE STATION - CR.NO.66/03 OF MURICKASSERY, POLICE STATION) REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
------------------------------------------- Crl.A No. 908 of 2008 --------------------------------------------- Dated this the 28th day of October, 2022
JUDGMENT
Aggrieved by the judgment dated 07.05.2008, passed by the Third Additional Sessions Court (Adhoc -I), Thodupuzha in Sessions Case No.421 of 2005, 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 six months and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 30.04.2003 at 10.45 a.m., accused was found in possession of 22 litres of toddy for the purpose of sale in his house 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 Sections 55(a) and 55 (i) 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 6 and proved Exts. P1 to P9, and MOs 1 to 3, MOs 4 & 5 series.
5. After the closure of the evidence on behalf of the
prosecution, 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. On the side of defence, DW1 was examined and Exts. D1 to D4 were marked. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(a) and 55(i) of the Abkari Act and convicted him.
6. Heard Sri. K.A.Jaleel, 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:-
(1) The arrest of the accused as pleaded by the prosecution is doubtful.
(2) 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 case of the prosecution is based on the foundation that the accused was arrested along with the contraband substance on 30.04.2003, from the place of occurrence.
9. In D.K. Basu v. State of West Bengal (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 attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
10. 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 non-compliance 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.
11. This Court in Ramankutty v. Excise 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 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.
12. 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.
13. The learned counsel for the appellant further relied on the following circumstances to substantiate his contention:-
(a) The prosecution has not established the tamper-proof despatch of the sample from the Court to the laboratory.
(b) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution.
(c) The officials who handled the sample during its transit from the Court to the laboratory were not examined. (d)The delay in the analysis of the sample has not been properly explained.
14. The alleged seizure was on 30.04.2003. The properties including the sample were produced before the Court only on 02.05.2003, as is evident from Ext.P4 property list. The prosecution has not offered any satisfactory explanation for the delay caused.
15. 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 unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (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.
16. 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.
17. The properties including the sample remained in the
custody of the Property Clerk of the Court till 05.05.2003. The sample was forwarded to the laboratory through a Police Constable No.1879 who delivered the same on 06.05.2003. Those two officials were not examined as witnesses by the prosecution. The non-examination of the officials who handled the sample is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. This view is supported by the decision of the Apex Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)].
18. Though the sample was delivered in the laboratory on
06.05.2003, it was subjected to analysis only on 04.05.2005. The delay of two years in subjecting the sample for analysis has not been satisfactorily explained by the prosecution. While dealing with the similar fact situation this Court in Krishnadas v. State of Kerala (2019 KHC 191) this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was
analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”
19. The resultant conclusion is that the prosecution failed
to prove that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. The appellant/accused is entitled to the benefit of doubt.
20. Resultantly, the conviction and sentence passed by
the trial Court cannot be sustained. The appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU JUDGE VPK