High Court of KeralaSingle Judge2018-12-12Acquitted; bail bond discharged

Ajikumar S/o Sivarajan Thottarikaththu Veedu, Koramkuzhy, Kottakkakammuri, Aryanad Village, Thiruvananthapuram vs State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Case / Petition Number:Crl.Rev.Pet.No. 387 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-12-12
Court Decision / Holding: In the result, this Criminal Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55 (a) of the Abkari Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged.
Final Disposition: Acquitted; bail bond discharged

Parties to the Case

Appellants / Petitioners

Ajikumar S/o Sivarajan Thottarikaththu Veedu, Koramkuzhy, Kottakkakammuri, Aryanad Village, Thiruvananthapuram

Respondents

State of Kerala represented by its Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Suman Chakravarthy
• Sri Shajin S. Hameed

Counsels for Respondents

• Public Prosecutor, SMT. V. Sreeja

Case Synopsis & Summary

This is a Criminal Revision Petition filed by Ajikumar S/o Sivarajan challenging a conviction under Section 55(a) of the Abkari Act. The petitioner was found in possession of 5 litres of arrack on 5 April 1997. The trial court and the appellate court held him guilty, and the revision petition challenges those findings. The crucial issue raised during revision concerns the integrity of the chain of custody of the contraband sample. There is no evidence showing that a sample was drawn from the seized contraband, and Ext.P5—the forwarding note—lacks any sealing or tamper-proof indicators. The prosecution’s key witnesses testified to seizure and sealing, but none testified to drawing a sample or forwarding it in a tamper-proof manner. Ext.P6 contains the chemical analysis of a sealed bottle, yet there is no direct link established between that sample and the contraband allegedly seized from the petitioner. The Amicus Curiae submits that, without a properly drawn and sealed sample, the link to the petitioner cannot be established, undermining the entire case. The court cites Krishnan.H v. State of Kerala (2015) to underscore that absence of a sample seal in the forwarding note can invalidate the chain of custody. Consequently, the revision petition is allowed, the conviction and sentence under Sec. 55(a) Abkari Act are set aside, and the petitioner is acquitted.

Provisions of Law Cited

Abkari Act, Sec. 55(a)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petition argues that there is no reliable conviction due to the absence of a drawn sample from the seized contraband and the lack of tamper-proof sealing for the sample forwarding process. Ext.P5 does not show any sealing at the space provided, and PW5’s testimony does not establish that a sample was drawn or forwarded in a tamper-proof manner. Ext.P6’s laboratory result cannot be linked conclusively to the petitioner absent a proper chain of custody. The absence of such evidence breaks the link between the contraband and the accused, rendering the conviction unsustainable, as reinforced by the Krishnan.H v. State of Kerala principle (2015). The court should acquit based on these deficiencies, as the prosecution failed to prove the essential elements beyond reasonable doubt.

Contentions of Respondents

The State contends that the evidence before the courts below sufficiently established possession of contraband and the chain of custody through seizure, forwarding notes, and chemical analysis. The presence of the contraband and its seizure were corroborated by the officers involved, and the lack of an explicit testimony about drawing a sample does not necessarily negate the integrity of the process or the laboratory result, especially where the forwarding note and lab report are consistent with a found contraband. The amicus’s submissions should not override the established documentary and testimonial evidence, and the conviction should stand in light of the material before the courts below.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishnan.H v. State of Kerala	2015(1) KHC 822	Positive	The court cites this authority to support the principle that absence of a sample seal in the forwarding note undermines the chain of custody, a factor that undermines the link between the contraband and the accused.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **Crl.Rev.Pet.No. 387 of 2008** **AGAINST THE ORDER/JUDGMENT IN CRA 15/2002 of ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM** **AGAINST THE ORDER/JUDGMENT IN CC 522/1999 of J.M.F.C.-I,NEDUMANGAD** ## **REVISION PETITIONER/S/APPELLANT/ACUSED:** **AJIKUMAR S/O. SIVARAJAN THOTTARIKATHU VEEDU, KORAMKUZHY,, KOTTAKKAKAM MURI, ARYANAD VILLAGE,, THIRUVANANTHAPURAM.** **BY ADV. SRI.SUMAN CHAKRAVARTHY ADV. SHAJIN.S.HAMEED** ## **RESPONDENT/S/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR, SMT.V.SREEJA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 387 of 2008** **2** ## **O R D E R** The revision petitioner was convicted and sentenced by the courts below under Section 55 (a) of the Abkari Act. 2. The is that on prosecution allegation 05.04.1997 at about 5.00 p.m., the revision petitioner was found in possession of 5 litres of arrack in contravention of the provisions of the Abkari Act. 3. It has been submitted on behalf of Adv. Sri. Suman Chakravarthy that even though letter was sent to the revision petitioner requesting the revision to some other as petitioner engage lawyer, **Crl.Rev.Pet.No. 387 of 2008** **3** Adv. Sri. Suman Chakravarthy had been appointed as a Public Prosecutor, there was no response from the side of the revision petitioner. In view of the above submission, this Court appoints Advocate Sri. Shajin. S. Hameed as the Amicus Curiae to argue the revision petition. 4. Heard the learned Amicus Curiae and the learned Public Prosecutor. 5. The learned Amicus Curiae has submitted that since there is no evidence with regard to the drawing of the sample from the contraband, the conviction and sentence passed by the courts below cannot be sustained. **Crl.Rev.Pet.No. 387 of 2008** **4** 6. PW1 and PW2 were the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. PW3 was the Preventive Officer, who accompanied PW5 at the relevant time for the patrol duty. PW4 was the officer, who conducted the investigation and filed the final report before the court. PW5 was the detecting officer. He was the Circle Inspector of Police, Excise during the relevant period. He detected the offence, seized the contraband and arrested the revision petitioner. Thereafter, the revision petitioner was enlarged on bail by PW5. PW5 stated that he had seized the **Crl.Rev.Pet.No. 387 of 2008** **5** contraband as such and sealed the same. PW5 did not state that he had drawn the sample from the contraband. Ext.P6 report of chemical analysis would show that one sealed bottle containing 150 ml of clear liquor was received in the laboratory. However, there is absolutely no evidence before the court with regard to the drawing of the sample from the contraband. Ext.P5 copy of the forwarding note was prepared by the Preventive Officer, Gopinatha Pillai, who was not examined before the court. There is no sample seal at the space provided for the same in Ext.P5 copy of the forwarding note. **Crl.Rev.Pet.No. 387 of 2008** **6** 7. This court in Krishnan.H v. State of Kerala [2015(1) KHC 822] held that the absence of sample seal at the space provided in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided in the original forwarding note. 8. In this case, the sample seal was not affixed at the place provided for the same in Ext.P5 copy of the forwarding note. No evidence was also adduced to show that the original forwarding note contained the seal. Therefore, the prosecution could not establish the tamper-proof sending of the sample to the laboratory, which is fatal to the prosecution. Since **Crl.Rev.Pet.No. 387 of 2008** **7** there is no evidence regarding the drawing of the sample and forwarding the same to the laboratory in a tamper-proof manner, it cannot be said that the sample analysed in the laboratory was the sample drawn from the contraband seized from the revision petitioner. Consequently, there cannot be any link evidence to connect the revision petitioner with the sample analysed in the laboratory. The above vital aspect was not considered by the courts below while appreciating the evidence. In the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. **Crl.Rev.Pet.No. 387 of 2008** **8** In the result, this Criminal Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55 (a) of the Abkari Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged. Sd/- ## **B.SUDHEENDRA KUMAR** RK/12.12.2018 **JUDGE** //TRUE COPY// PA TO JUDGE