Asokan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 1683 OF 2016 ``` ``` AGAINST THE JUDGMENT IN SC 812/2014 OF III ADDITIONAL ASSISTANT SESSIONS COURT, KOZHIKODE CRA 466/2015 OF III ADDITIONAL SESSIONS COURT, KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` ASOKAN, S/O.PACHUKUTTY, AGED 49 YEARS, VALLIKATTUMMAL VEEDU, KARUVATTUR AMSOM, POOLOOR DESOM, KOZHIKODE 673611. ``` ``` BY ADVS. SRI.K.M.FIROZ SRI.E.C.AHAMED FAZIL SMT.M.SHAJNA SMT.UMMUL FIDA ``` ## **`RESPONDENTS/RESPONDENTS/THE STATE AND THE COMPLAINANT:`** - **`1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM`** - **`2 THE EXCISE INSPECTOR CHELANNUR RANGE STATION, KOZHIKODE - 673616.`** ## **`OTHER PRESENT:`** ``` PP - M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ``` ``` 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.1683 of 2016 2 ## **VIJU ABRAHAM, J** **.............................................. Crl.R.P.No.1683 of 2016 .............................................. Dated this the 17[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in S.C.No.812 of 2014 on the file of the III Additional Assistant Sessions Court, Kozhikode registered alleging commission of offences punishable under Sections 8(1) and 8(2) of the Kerala Abkari Act. 2. The prosecution case is that on 31.10.2012 at about 11.00 a.m. at a place in front of the house of one Mr. Malayil Moideen Koya on the side of the road called Karattu Thazham – Poloor temple road in Kuruvattur amsom Paloor desom of Kozhikode Taluk, the accused/revision petitioner was found possessing and transporting 10 litres of illicit arrack in a white can having capacity of 10 litres and thereby the revision petitioner/accused has committed the alleged offences. 3. The prosecution in support of their case examined PW1 to PW4 and marked Exts.P1 to P7 and identified MO1. 4 **.** The trial court on consideration of the evidence adduced found that the accused is guilty of the offences under Sections 8(1) and 8(2) of the Abkari Act and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further Crl.RP No.1683 of 2016 3 period of one month **.** It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. Though an appeal was preferred as Crl.Appeal No.466 of 2015 before the III Additional Sessions Court, Kozhikode, the same was disposed of confirming the conviction and sentence imposed by the trial court. 5. Learned counsel appearing for the revision petitioner has raised the following contentions. He relying on Ext.P5 forwarding note and Ext.P7 chemical analysis report would submit that in Ext.P5 the name of the Excise Guard through whom the alleged sample was sent for chemical analysis is not mentioned. Yet another contention raised by the learned counsel for the revision petitioner is that Ext.P5 does not reveal the date on which the sample was despatched for chemical analysis. A perusal of Ext.P7 would reveal that the same does not mention the date of the letter bearing No.PR 412/12 through which the sample was sent from the court to chemical analysis laboratory. It is mentioned in Ext P7 that the sample was received in the laboratory only on 27.03.2014. Admittedly, the occurrence was on 31.10.2012 and the sample was produced before the court on 31.10.2012 itself. In light of the same, the contention of the learned counsel for the revision petitioner is that there is no evidence adduced on the side of the prosecution either by examining the Property Clerk or the Guard through which the sample was sent for chemical examination to prove the date of despatch of the sample and the safe custody of the same. Petitioner relies on the judgment in Crl.RP No.1683 of 2016 4 **Viswanadhan v. State of Kerala, 2016 (3) KHC 38** , and also the judgment in **Majeedkutty v. The Excise Inspector, Kollam Range, 2015 (1) KHC 424** , in support of his contention. 6. Though it is true that the scope of interference by this court exercising revisional 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. 7. In Ext P5 forwarding note, the name of the Excise Guard through whom the alleged sample was sent for examination is not mentioned. This court in **Jayakumar v. State of Kerala, 2018 (1) KLT SN 65** and **Gnanaprakasham v. State of Kerala, 2021 (4) KLT OnLine 1089** has held that evidence regarding the date on which the learned Magistrate had sent the sample to the laboratory and the date on which the Excise Guard referred to in the forwarding note received the sample from the Crl.RP No.1683 of 2016 5 court is very vital while looking for assurance regarding the question whether the very same sample allegedly drawn at the scene of occurrence reached the hands of the Analyst in a tamper proof condition. A similar view was taken by this court in **Kumaran v. State of Kerala, 2016 (4) KLT 718** , paragraph 7 of the order reads as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamperproof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof_ Crl.RP No.1683 of 2016 6 _despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ ## This court in **Viswanadhan’s** case cited supra held as follows: _“13. In those decisions it has been held that, if the sample has changed through several hands before reaching the chemical examiner's lab, unless it is proved by the prosecution by examining those persons, it cannot be said that it has reached the hands of the chemical examiner in a tamper proof condition so as to come to the conclusion that the sample relates to the representative sample of the article alleged to have been seized from the possession of the accused. In this case, it is seen from Ext.P5 chemical analysis report that, though the covering letter of the Judicial First Class Magistrate Court-II, Pathanamthitta, was dated 29.10.1999, it reached the chemical examiner's lab only on 24.11.1999 and that was sent through one police constable with No.1025. DW1 the thondy clerk was examined and Ext.D1 the relevant page of the thondy register was marked through him. In Ext.D1 though there was an endorsement made by the police constable with No.1025 had received the sample for taking the same to chemical examiner's lab, Thiruvananthapuram, the date of receipt of the same was not mentioned. DW1 was also not in a position to mention the date on which it was entrusted to the police constable as well. In the absence of such evidence, it can only be presumed that it was entrusted on the same day, which appears in the covering letter namely 24.10.1999 and it cannot be presumed as observed by the court below that there was a possibility of the same being given on a subsequent date. Though the covering letter was prepared earlier. This can be explained only by examining the police constable namely P.C.1025 who had taken the sample from the court and entrusted the same with the chemical examiner's lab. The evidence of PW3 will go to show that he was not_ Crl.RP No.1683 of 2016 7 _aware of the fact as to whether such a police constable was working in that police station at the relevant time. Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ This court in **Viayan 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 thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. Admittedly, the name of the Excise Guard through whom the sample was sent is not mentioned in Ext P5 forwarding note. Likewise, the date on which the sample was sent from the court is not discernable on a perusal of Ext P5 or P7. In the said circumstance, it was incumbent on the part of the prosecution to have examined the Thondy clerk or the Guard through which the sample was sent for examination to prove the above facts, which is admittedly not done in the present case. In view of the same, the petitioner is entitled for the benefit of doubt. 8. The above vital aspects were not considered by the courts below while Crl.RP No.1683 of 2016 8 appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. 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** cks