Ajayan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** **Crl.Rev.Pet.No.1459 OF 2008** **AGAINST THE JUDGMENT IN CRA 254/2006 DATED 27.03.2008 OF ADDITIONAL SESSIONS JUDGE, PATHANAMTHITTA CONFIRMING THE JUDGMENT IN SC 717/2003 DATED 21.06.2006 OF ASSISTANT SESSIONS COURT, PATHANAMTHITTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED** **AJAYAN, S/O.KUNJUKUNJU KAPPAKADULAYAM, LAHA ESTATE, PERUNADU.** **BY ADVS. SRI.PHILIP M.VARUGHESE SRI.AMRIT RAJ BABY** ## **RESPONDENTS/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER- SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON 19.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1459/2008 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1459 of 2008 -------------------------------------------Dated this the 19[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.717/2003 on the file of the Court of the Assistant Sessions Judge, Pathanamthitta. 2. The prosecution case is that, on 25.01.2001, at about 11:30 hours, at the road in front of Pampini Anganavadi in Ranni Taluk, PW1 Excise Inspector found the petitioner/accused having in his possession a can containing three litres of arrack. 3. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The petitioner pleaded not guilty to the offence and Crl.R.P.No.1459/2008 3 claimed to be tried. 4. The prosecution examined PW1 to PW3 and marked Exts.P1 to P5 documents and MO1 material object. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.254/2006 before the Court of Session, Pathanamthitta, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. Crl.R.P.No.1459/2008 4 ## 8. Heard. Perused the records. 9. PW1 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the Preventive Officer who was in the excise party led by PW1. His testimony corroborates the evidence of PW1 regarding the occurrence. 10. Ext.P5 is the chemical examination report in respect of the sample of liquid which was forwarded for analysis. It shows that the sample of liquid contained 34.55% by volume of ethyl alcohol. 11. On perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner, for the following reasons. 12. There is a specific recital in Ext.P2 seizure mahazar that, after taking sample of liquid from the can, PW1 sealed the sample bottle and the can and affixed label, bearing the signature of himself and the witnesses and the accused, on the Crl.R.P.No.1459/2008 5 sample bottle and the can. However, PW1 has not given any evidence that he sealed the can or that he affixed any label on the sample bottle and the can. The evidence of PW1 is only that he sealed the sample bottle. 13. Ext.P3 is the crime and occurrence report prepared by PW1. Ext.P4 is the property list prepared by him for producing the material objects before the court. The description of the sample bottle and the can given in Ext.P3 report and Ext.P4 property list does not show that there was any seal or label on the can and any label on the sample bottle. It means that, there was no seal or label on the can and label on the sample bottle at the time of registration of Ext.P4 report and also when they were produced before the court. It creates suspicion as to whether the very same can allegedly seized from the possession of the petitioner and the sample of liquid drawn from that can at the spot of the occurrence were produced before the court. 14. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating Crl.R.P.No.1459/2008 6 officer for sending the sample for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 15. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be_ Crl.R.P.No.1459/2008 7 _conclusive proof by itself. The sample seized and that tested have to be co-related"._ 16. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 17. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects. In such circumstances, the conviction entered against the Crl.R.P.No.1459/2008 8 petitioner/accused and the sentence imposed on him by the courts below cannot be sustained. The petitioner/accused is entitled to be acquitted. 18. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act, which has been affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge