Anil @ Anilkumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945`** ## **`CRL.REV.PET NO. 2685 OF 2010`** ``` CRL.APPEALNO.218OF2008OFADDITIONALDISTRICT& SESSIONSJUDGE(ADHOC)COURT-I,PATHANAMTHITTA ``` ``` SC197/2003OFASSISTANTSESSIONSCOURT,THIRUVALLA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` ANIL@ANILKUMAR,S/O.SUGUNAN, NADUVATHARAVEEDU,KIZHAKKANOTHARAMURI,ERAVIPEROOR VILLAGE,PATHANAMTHITTADISTRICT. ``` ## **`BY ADV NIREESH MATHEW`** ``` RESPONDENT/RESPONDENT/STATE: ``` ``` STATEOFKERALAREPRESENTEDBYTHESUBINSPECTOROFPOLICE, THIRUVALLAPOLICESTATION,REPRESENTEDBYTHEPUBLIC PROSECUTOR,HIGHCOURTOFKERALA. ``` ## **`SR.PUBLIC PROSECUTOR SHRI. MANU (MAMALASSERY)`** ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLY HEARDON21.11.2023,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` Crl.R.P No.2685 of 2010 2 ## **O R D E R** This revision is at the instance of the accused in S.C.No.197 of 2003 on the file of Assistant Sessions Judge, Thiruvalla, assailing the judgment in Crl.Appeal No.218 of 2008 on the file of Additional District and Sessions Judge (Ad-hoc) Court-I, Pathanamthitta, which upheld his conviction and sentence under Section 55(i) of the Abkari Act and altered his conviction under Section 55(a) of the Abkari Act into one under Section 58 of the Abkari Act, without altering the sentence. 2. The prosecution case is that on 23.08.2001 at 11.15 a.m., PW6-the Circle Inspector of Police, Thiruvalla, and Police party found the revision petitioner possessing 79.875 litres of illicit foreign liquor, in a secret cabin in his house at Eraviperoor Panchayat. The revision petitioner was arrested, and the contraband was seized, and crime was registered against him under Sections 55(a), 55(g) and 55(i) of the Abkari Act. PW7 investigated the case and laid charge sheet against the revision petitioner. 3. On appearance of the revision petitioner before the trial court, charge was framed under Section 55(a) and 55(i) of the Crl.R.P No.2685 of 2010 3 Abkari Act, to which he pleaded not guilty, and claimed to be tried. Thereupon prosecution examined PWs 1 to 7 and marked Exts.P1 to P12 and identified MOs 1 to 4 to prove its case. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. and he denied all the incriminating circumstances brought on record. DWs 1 and 2 were examined from defence side. 4. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court convicted the revision petitioner under Section 55(a) and 55(i) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of three years and fine of Rs.1,00,000/- under each count, with a default sentence of simple imprisonment for a further period of six months. 5. Aggrieved by the convocation and sentence, the revision petitioner preferred Crl.Appeal No.218 of 2008. The appellate court upheld his conviction and sentence under Section 55(i) of the Abkari Act, but the conviction under Section 55(a) of the Abkari Act was altered into one under Section 58 of the Abkari Act maintaining the sentence. Against the dismissal of appeal, he Crl.R.P No.2685 of 2010 4 has preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner by the appellate court. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. Learned counsel for the revision petitioner would argue that there are material defects in the prosecution case, which according to him will vitiate the trial. The first ground taken up by the revision petitioner is that, in the search list prepared by PW6-detecting officer, there is no specimen impression of the seal. Ext.P1 is the search list prepared by the detecting officer, and no seizure mahazar was seen prepared at the time of detection. But on going through Ext.P1, it could be seen that, it contains all the details to be contained in a seizure mahazar, but it is named as a search list. Whatever be the nomenclature used by the detecting officer, since it contains all the details to be contained in a seizure mahazar, it can be treated as seizure mahazar. But no specimen impression of the seal is there in that document, which is a material defect pointed out by the learned Crl.R.P No.2685 of 2010 5 counsel for the revision petitioner. 9. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. In **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** , this Court held that when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult to hold that the sample which reached the Chemical Examiner’s Laboratory was the sample taken from the contraband allegedly seized from the possession of the accused. 10. The nature of seal used in the search list/seizure mahazar ought to have been stated in that document itself. But Ext.P1 document does not contain the nature of the seal used for sealing the sample taken at the spot. When the sample is sealed using the seal, of which the impression is there in the seizure mahazar, it guarantees the identity of the sample, as taken from the contraband allegedly seized from the revision petitioner, at the place of detection itself. Since there is no specimen impression of the seal or description of the nature of the seal in the seizure mahazar, it is a ground to doubt the genuineness of Crl.R.P No.2685 of 2010 6 the sample produced before the Chemical Examiner’s Laboratory. The revision petitioner is entitled to get the benefit of that doubt. 11. In Ext.P11 forwarding note also there was no specimen impression of seal in the place provided for that purpose. Prosecution is duty bound to establish that the sample allegedly taken from the contraband possessed by the revision petitioner was produced before the court and the very same sample was sent to the Chemical Examiner’s Laboratory for analysis. When the forwarding note also bears specimen impression of the seal, with which the sample bottle was sealed, it will amply prove tamper proof despatch of the sample. 12. In **Bhaskaran v. State of Kerala [2020 KHC 5296]** this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. Moreover, the detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the nature of the seal used shall be mentioned in the seizure mahazar also. Crl.R.P No.2685 of 2010 7 13. Prosecution is duty bound to prove that, it was the sample taken from the contraband liquor seized from the accused reached the hands of the Chemical Examiner in a foolproof condition (See **Sasidharan v. State of Kerala [2007 (1) KLT 720]** . 14. In the case on hand, the name of the person with whom the sample bottle was entrusted to be taken to the Chemical Examiner’s Laboratory will not find a place in the forwarding note. In Ext.P12 Chemical Analysis Report, it is stated that the sample was taken to the Laboratory by the Police Constable 1903. The sample sent from the court on 11.10.2001 reached the Laboratory only on the next date, i.e., on 12.10.2001. Prosecution was bound to explain that delay of one day in reaching the sample before the Chemical Examiner’s Laboratory. No explanation whatsoever has been offered, and the person, who took the same to the Laboratory was not examined to explain the delay. 15. When there is delay in reaching the sample before the chemical examiner, there is no assurance that the sample seized from the accused reached the hands of the chemical examiner, in Crl.R.P No.2685 of 2010 8 a tamper proof manner. In **Krishnadas v. State of Kerala [2019 KHC 191]** , this Court had occasion to consider the impact of delay in reaching the sample before the laboratory, and held that, when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. 16. Ext.P8 property list shows that the articles seized reached the court only on 24.09.2001. The seizure was on 23.08.2001. So there was delay of more than one month in reaching the articles before the court. Prosecution has not offered any explanation for the delay of one month in reaching the articles before the court. There is nothing to show who kept the articles including the sample bottle for about one month till it was produced before the court. The long delay in producing the articles before court casts serious doubt regarding the tamper proof despatch of the sample, till it reached the Chemical Examiner’s Laboratory. The prosecution did not examine anybody to prove that the sample bottle was kept under safe custody without any tampering, and in the absence of such evidence, one cannot presume that the sample seized reached the Chemical Crl.R.P No.2685 of 2010 9 Examiner’s Laboratory in a foolproof condition. 17. Another ground pointed out by the learned counsel for the revision petitioner is that in the arrest memo of the accused, crime number is mentioned, and that makes the arrest doubtful. According to prosecution the revision petitioner was arrested from the scene of occurrence on 23.08.2001. The crime was registered after the arrest and seizure and in no way, the arrest memo shall contain the crime number, which was prepared at a later point of time. When the arrest memo contains the crime number, it may lead to an inference that the revision petitioner was arrested subsequent to registration of the crime or the crime number was subsequently inserted in the arrest memo, which was already prepared. 18. In **Rafeeque v. Sub Inspector of Police [2020 (4) KLT 188]** , this Court held that presence of crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first Crl.R.P No.2685 of 2010 10 information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident, and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. In this scenario, it is pertinent to note that the independent witnesses alleged to have witnessed the arrest and seizure turned hostile to the prosecution. So there is no independent evidence to prove the arrest of the revision petitioner from the place of detection on 23.08.2001. When the arrest memo supposed to have been prepared at the scene of occurrence bears the crime number, which was subsequently prepared at the office of PW6, a genuine doubt arises as to when the revision petitioner was arrested. So he is entitled to get the benefit of that doubt. 19. In the case on hand, the detection was by PW6-the Circle Inspector of Police, Thiruvalla, PWs 5 and 7 were the Police Constable and the Sub Inspector of Police respectively accompanying PW6 at the time of detection. Curiously enough, the investigation of the case was entrusted with PW7, who was a subordinate officer of PW6, and more than that, he was a Crl.R.P No.2685 of 2010 11 member of the Police party, who detected the offence. So learned counsel for the revision petitioner submitted that serious prejudice was caused to the revision petitioner, by investigating the case by PW7, who was a member of the Police team which detected the offence, and moreover a subordinate of the detecting officer. A subordinate officer investigating a case detected by his superior officer may be in an embarrassing position to go against his superior officer, if at all his investigation reveals something which will have the effect of exonerating the accused from the allegations made against him. It is more so, when the investigating officer himself was a member of the Police team, which detected the offence. No explanation is offered by the prosecution for entrusting the investigation to a member of the detecting team, that too a subordinate of the detecting officer. In **Xavier v. State of Kerala [1998 (1) KLT 686]** this Court observed that when the complainant himself is a Police official, the investigation should have been conducted by his top ranking officer or else it will cause prejudice to the accused, as he will be deprived of his valuable rights of contradicting and corroborating the previous informations recorded under Sections Crl.R.P No.2685 of 2010 12 154 or 155 of Cr.P.C., and previous statement of the witnesses recorded under Section 161 of Cr.P.C. 20. It is true that large quantity of illicit foreign liquor was seized in this case. Ext.P12 Chemical Report shows that ethyl alcohol was detected in all the samples analysed before the Laboratory. But, for the reasons aforementioned prosecution failed to prove tamper proof despatch of the sample. Absence of specimen impression of the seal in the search list/seizure mahazar and in the forwarding note, absence of nature of the seal recorded in the search list/seizure mahazar, the delay of more than one month in producing the contraband and the sample bottles before the court, the presence of crime number in the arrest memo, unexplained delay of one day in reaching the sample before the Chemical Examiner’s Laboratory, investigation done by a member of the detecting team that too by a subordinate of the detecting officer, etc. etc. are sufficient to doubt the veracity of the prosecution case. The conviction and sentence imposed by the courts below without noticing these material defects are liable to be set aside. 21. In the result, the impugned judgment of conviction and Crl.R.P No.2685 of 2010 13 sentence are hereby set aside, and the revision petitioner is found not guilty of the offences alleged, and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-