Anirudhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945** ## **CRL.REV.PET NO. 1868 OF 2013** **AGAINST THE JUDGMENT DATED 29.07.2013 IN CRA 240/2012 OF ADDITIONAL DISTRICT AND SESSIONS COURT, MAVELIKKARA IN SC 330/2010 OF ASSISTANT SESSIONS COURT, CHENGANNUR** ## **REVISION PETITIONER:** ANIRUDHAN, AGED 45 YEARS, S/O.CHELLAPPAN, ANU BHAVANAM, ERAMATHOOR MURI, THRIPPERUMTHAURA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DIST BY ADV SRI.AJITH MURALI ## **RESPONDENT:** STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM PUBLIC PROSECUTOR RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Crl.R.P.No.1868 of 2013 2** ## **VIJU ABRAHAM,J** ## **----------------------Crl.R.P.No.1868 of 2013 ------------------------------------Dated this the 15[th] day of September, 2023** ## **ORDER** The revision petitioner is the accused in S.C. No.330 of 2010 on the file of the Assistant Sessions Judge, Chengannur alleging commission of offence punishable under Section 8(1) & (2) of the Abkari Act. 2. The prosecution case is that on 7.6.2006 at 1.05 p.m., the accused was found carrying 1 litre of arrack in 1 litre plastic Can near the road on the northern side of Hero Honda Service Centre at Kuttamperoor Muri and thereby the accused committed the above said offence. 3. The final report in this case was filed before the Judicial First Class Magistrate's Court, Chengannur and was taken on file as C.P.No.189 of 2009. After having complied with all the legal formalities, the case was committed to the Sessions Court, Alappuzha as per order dated ## **Crl.R.P.No.1868 of 2013 3** 17.1.2010 and accordingly, the case has been made over to the Asst. Sessions Court, Chengannur and numbered as SC No.330 of 2010. 4. To prove the prosecution case, PWs.1 to 4 were examined and Exts.P1 to P6 and MO1 were marked. 5. The trial court on consideration of the evidence adduced found that the accused was guilty and he was convicted and sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month. It is also ordered that the period he had already undergone under judicial custody, petitioner is entitled to set off. 6. An appeal was preferred as Crl. Appeal No.240 of 2012, before the Addl District and Sessions Court, Mavelikkara but the same was dismissed upholding the conviction and sentence imposed by the trial Court. Assailing the said conviction and sentence, this Crl.Revision ## **Crl.R.P.No.1868 of 2013 4** Petition is filed. 7. Petitioner contended that independent witnesses who witnessed the seizure have not been examined and therefore the identity of the accused is not proved by the prosecution. It is further contended that in Ext.P4 crime and occurrence report regarding item No.1, there is no mention as to whether the plastic bottle containing 1 litre of arrack is sealed and therefore, there is every chance for tampering with the evidence. Further contention of the petitioner is that in Ext.P1 mahazar, no specimen seal has been affixed. Likewise, it is the contention of the petitioner that no forwarding note is produced and marked before the trial court which cuts the root of the prosecution case. 8. Learned Public Prosecutor submits that sufficient evidence has been adduced in this case to prove the case against the accused beyond any reasonable doubt and therefore prayed for maintaining the order of conviction and sentence ## **Crl.R.P.No.1868 of 2013 5** passed by the courts below. 9. As regards Ext P4 occurrence report, it could be seen that the first item produced is a bottle containing 1 litre of arrack which is not sealed. A question was put to PW3, who admits that as regards item No.1 in Ext P4, there is no mention that seal has been affixed. The said lacuna itself makes the prosecution case doubtful. 10. Another crucial aspect to be taken into consideration is that in Ext P1 mahazar, no specimen seal has been affixed. In the crossexamination of PW1, who is the detecting officer, has admitted that in Ext.P1 mahazar or in the statement, there is no mention as to the nature of the seal which has been affixed on the said mahazar. Another aspect to be noted is that the forwarding note, forwarding the sample to the chemical analyst is not produced and marked before the trial court. 11. Though it is true that the scope of interference by this court exercising revisional ## **Crl.R.P.No.1868 of 2013 6** jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in _**Baburaj v. State of Kerala, 2021 (6) KLT 416**_ , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in _**Sathi v. State of Kerala, 2007 (1) KLT SN 57**_ **.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 12. Another crucial aspect to be taken into consideration is that in Ext P1 mahazar, no specimen seal has been affixed. It is further contended that the forwarding note, forwarding the ## **Crl.R.P.No.1868 of 2013 7** sample to the chemical analyst is not produced and marked before the trial court. This court in _**Vijayan v. State of Kerala, 2021 (5) KLT 321**_ **,** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. In _**Natarajan v. State of**_ _**Kerala, 2020 (3) KLT OnLine 1030**_ , it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note (in the present case no forwarding note is marked), there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as ## **Crl.R.P.No.1868 of 2013 8** per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in _**Gopalan v. State of Kerala** ,_ _**2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96)**_ and in _**Moothedath Sivadasan v. State of**_ _**Kerala, 2021 (1) KLT 744**_ **.** The Apex Court in _**Vijay Pandey v. State of U.P., AIR 2019 SC 3569**_ has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. 13. The above vital aspects were not considered by the courts below while appreciating ## **Crl.R.P.No.1868 of 2013 9** the evidence.In the said circumstance, the conviction and sentence passed by the court below cannot be sustained. In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and he is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. sd/- **VIJU ABRAHAM, JUDGE** pm