Anil Kumar v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ## _`CRL.REV.PET NO. 327 OF 2016`_ ``` AGAINST THE ORDER DATED 21.06.2015 IN CRL.A 143/2013 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE-I, THIRUVANANTHAPURAM AND AGAINST THE JUDGMENT IN SC 961/2008 OF ASSISTANT SESSIONS COURT,ATTINGAL ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` ANIL KUMAR S/O.PURUSHOTHAMAN, VILAYIL VEEDU, VISWAMARAN NAGAR, VELLALLOR VILLAGE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM TALUK. BY ADV SRI.M.R.SARIN ``` ## _`RESPONDENT/RESPONDENT/COMPLAINANT:`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## _`OTHER PRESENT:`_ ``` SRI RENJIT GEORGE-SR.P.P. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 327 of 2016 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl.R.P No. 327 of 2016 ## **========================** ## _**O R D E R**_ ## **Dated this the 12[th] day of December, 2023** This revision is at the instance of the accused in S.C. No.961 of 2008 on the file of Assistant Sessions Judge, Attingal, assailing the judgment in Crl. Appeal No.143 of 2013 on the file of Additional Sessions Judge-I, Thiruvananthapuram, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that on 26.05.2007 at 3.30 p.m., the revision petitioner was found carrying ten litres of arrack in a ten litre can through Ozhukupara-Oonankal road. PW4, Excise Inspector and party detected the offence. The contraband was seized from the possession of the revision petitioner and he was ``` Crl.R.P. No. 327 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** arrested. Sample was taken and seizure mahazar was prepared at the spot. The revision petitioner along with the contraband seized, and the documents prepared were produced before the Excise office where crime was registered against him. After investigation charge sheet was laid against him under Sections 8(1) and 8(2) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 5, marked Exts.P1 to P6, and identified MO1, to prove its case. 4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision ``` Crl.R.P. No. 327 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for a period of two years, and fine of Rs.1 lakh, with a default sentence of simple imprisonment for three months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.143 of 2013. The appellate court, on re-appreciating the facts and evidence, found nothing to interfere with the conviction and sentence imposed by the trial court, and hence, the appeal was dismissed, against which he has preferred this revision petition. 7. 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 courts below. 8. Heard the learned counsel for the revision petitioner and learned Public Prosecutor. 9. Learned counsel for the revision petitioner is assailing the conviction and sentence mainly on the ground that, there was no ``` Crl.R.P. No. 327 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** specimen impression of the seal in the seizure mahazar, which, according to her, casts serious doubt regarding the genuineness and identity of the sample which reached the chemical examiner's laboratory. According to her, prosecution is duty bound to establish beyond any shadow of doubt, that the sample, which was taken from the contraband allegedly seized from the possession of the revision petitioner, was the sample which reached the chemical lab for analysis. Since there is no specimen impression of the seal in the seizure mahazar, one cannot say that the seal on the sample bottle was affixed, at the time of taking the sample at the scene of occurrence. Since a genuine doubt arises with respect to the seal affixed on the sample bottle, the revision petitioner is entitled to get the benefit of that doubt. Moreover, the nature of the seal with which the sample bottle was sealed is not mentioned in the seizure mahazar. PW4 the detecting officer, also did not depose anything regarding the nature of the seal which was affixed on the sample bottle. ``` Crl.R.P. No. 327 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** 10. In _**Vijayan @ Puthoor Vijayan v. State of Kerala**_ [2021 (5) KHC 347], this Court held that specimen seal shall be affixed on the mahazar, sample bottle, etc., and 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 and also in the seizure mahazar. 11. In _**Rangan V. State of Kerala**_ , [2023 KHC 2888], this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar, and the specimen of the seal shall be produced in the court, so as to enable the court to satisfy the genuineness of the sample produced before court. 12. When the mahazar neither contain the specimen impression of the seal nor any description as to the nature of the seal affixed on the sample, and evidence of detecting officer also is silent about the nature of the seal, it cannot be concluded that, the sample which was drawn from the liquor, allegedly possessed by the revision petitioner, was the very same sample subjected to chemical analysis. Merely ``` Crl.R.P. No. 327 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** because of the reason that, the chemical analysis report indicates presence of alcohol in the sample, the revision petitioner cannot be found guilty of the offences, unless the relationship of the said sample is established with the liquor seized from the possession of the revision petitioner (See _**Kumran Narayanan and Others v. State of Kerala**_ 2022 KHC 4448). 13. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. In the case on hand, since there was no specimen impression of the seal in the seizure mahazar, prosecution failed to prove the authenticity of the sample, which was analysed by the chemical examiner. So, we have to say that the link evidence was not proved by the prosecution, to establish the fact that the sample taken from the contraband, allegedly possessed by the revision petitioner was the sample analysed by the chemical examiner in the laboratory. In the absence of evidence to show tamper proof despatch of the sample, it cannot be said that prosecution succeeded ``` Crl.R.P. No. 327 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** in proving that the sample analysed before the lab was the sample drawn from the contraband possessed by the revision petitioner, and hence, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court are liable to be interfered with. 14. In the result, the conviction and sentence imposed on the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act by the courts below 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** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```