Appeal against conviction for possession of arrack dismissed due to non-compliance of arrest memo requirements and significant delay in laboratory analysis, leading to acquittal.
Appellant found not guilty, acquitted and set at liberty. Deposited amount to be disbursed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 26TH DAY OF JULY 2022 / 4TH SRAVANA, 1944
CRL.A NO. 2942 OF 2008
AGAINST THE ORDER/JUDGMENTSC 843/2007 OF ADDITIONAL DISTRICT COURT
(ADHOC), THRISSUR
APPELLANT/ACCUSED:
JOY @ JAYARAJKUMAR,
JAYAMANDIR
ARANGAMUGAL DESOM,
ARALMOODU, ATHIYANNUR VILLAGE,
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM.
BY ADV SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING, ERNAKULAM,
(EXCISE INSPECTOR,
EXCISE RANGE OFFICE, PAZHAYANNUR).
OTHER PRESENT:
SMT. REKHA.S (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2942 OF 2008
2
K.BABU, J.
=========================
Criminal Appeal No.2942 of 2008
========================= Dated this the 26th day of July, 2022
J U D G M E N T
Aggrieved by the judgment dated 18.11.2008, passed by the Additional Sessions Judge, (Adhoc) Fast Track Court-I, Thrissur in S.C.No.843/2007, the accused has preferred this appeal. The appellant was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh.
Sessions Court from where it was made over to the Trial
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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.
CRL.A NO. 2942 OF 2008
4
(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
CRL.A NO. 2942 OF 2008
5
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.
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'
CRL.A NO. 2942 OF 2008
6
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.
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CRL.A NO. 2942 OF 2008
including the sample were produced before the Court on 08.12.2004. Ext.P7 list of properties shows that, an officer of the Court received the sample on 08.12.2004. The further endorsement on Ext.P7 shows that, the Junior Superintendent of the Court received the sample on 14.12.2004. The sample was forwarded to the Laboratory as per letter dated 20.12.2004 through an Excise Guard by name Sri. A.R. Rejimon. The Property Clerk of the Court, Junior Superintendent of the Court and the Excise Guard, who delivered the sample to the Laboratory, were not examined as witnesses by the prosecution to rule out the possibility of the sample being changed or tampered with. The non examination of those officials is fatal to the prosecution as it failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. Omission on the part of the prosecution in examining those officials leads to the conclusion that it failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the
CRL.A NO. 2942 OF 2008
8
Apex Court in State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314).
“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.”
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CRL.A NO. 2942 OF 2008
months in analysing the sample has not been explained by the prosecution.
CRL.A NO. 2942 OF 2008
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Court shall be disbursed to the appellant/accused.
The appeal is allowed as above.
Sd/-
K.BABU, JUDGE
LU
3 issues framed by the court
Whether the non-production of arrest memo and absence of analysis report renders the prosecution case doubtful.
Whether delay in laboratory analysis affects the evidentiary value of the certificate of analysis.
Whether the conviction and sentence against the appellant can be sustained in the absence of established link to contraband.
Colour shows how this judgement treated each authority
D.K.Basu v. State of West BengalApplied¶39
[1997 (1) SCC 416] · Who else cites this
Ramankutty v. Excise Inspector, Chelannur RangeApplied¶49
[2013 (3) KHC 308]
State of Rajasthan v. Daulath RamApplied¶56
(AIR 1980 SC 1314) · Who else cites this
Krishnadas v. State of KeralaRelied on¶57
(2019 KHC 191)
3 provisions across 2 enactments
JOY @ JAYARAJKUMAR
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court