B. Lakshmanan v. State of Kerala

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE23[RD]DAYOFNOVEMBER2023/2NDAGRAHAYANA, 1945 ``` ## **`CRL.REV.PET NO. 1890 OF 2010`** ``` AGAINSTTHEJUDGMENTDATED26.12.2009INCRL.APPEAL NO.173/2007OFADDITIONALSESSIONSCOURT(ADHOC)-I, KASARAGOD ``` ``` *SC292/2005OFASSISTANTSESSIONSCOURT,HOSDRUG ``` ``` *SCNO.292OF2005ISCORRECTEDASSCNo.298of2005ASPER ORDERDATED12.07.2010INCRL.M.A.No.6479OF2010. ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` B.LAKSHMANAN,AGED39,S/O.VASU, RESIDINGATMOOLAKKADAMCOLONY,AJANURVILLAGE, HOSDURGTALUK,KASARAGODDISTRICT. ``` ``` BYADVS. SRI.RAHULSASI SMT.NEETHUPREM ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT AND STATE:`** ``` STATEOFKERALA, REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM. ``` ## **`SR.PUBLIC PROSECUTOR SHRI RENJIT GEORGE`** ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLY HEARDON23.11.2023,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` Crl.R.P No.1890 of 2010 2 ## **O R D E R** This revision is at the instance of the accused in S.C.No.298 of 2005 on the file of Assistant Sessions Judge, Hosdurg, assailing the judgment in Crl.Appeal No.173 of 2007 on the file of Additional Sessions Judge (Ad Hoc)-1, Kasaragod, which upheld his conviction and sentence under Section 55(g) of the Abkari Act. 2. Prosecution case is that on 13.11.2001, at 06.00 a.m., while PW1-preventive officer and Excise party were engaged in Abkari raid, they found the revision petitioner transporting ten litres of wash in a plastic pot at a place called Moolakandam in Hosdurg Taluk. The revision petitioner was arrested and the contraband was seized. After completing the legal formalities, the revision petitioner along with the records and the articles seized were produced before the Excise office, Hosdurg. PW5 investigated the case and laid charge sheet against the revision petitioner under Section 55(g) of the Abkari Act. Crl.R.P No.1890 of 2010 3 3. On appearance of the revision petitioner before the trial court, charge was framed under Section 55(g) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 8, marked Exts.P1 to P10 and identified MO1 to prove its case. 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, and DWs 1 and 2 were examined from defence side. 4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 55(g) of the Abkari Act and he was convicted and sentenced to undergo simple imprisonment for one year and fine of Rs.1,00,000/with a default sentence of simple imprisonment for a further period of three months. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No. 173 of 2007. On re-appreciation of the facts and evidence, the appellate court Crl.R.P No.1890 of 2010 4 found that there was no reason to interfere with the conviction and sentence, and hence the appeal was dismissed, against which, he has preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed by the courts below. 7. Heard the learned counsel for the revision petitioner and learned Public Prosecutor. 8. Learned counsel for the revision petitioner is assailing the conviction and sentence, mainly on the ground that there was no 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, the 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 Examiner’s Laboratory for analysis. Since there is Crl.R.P No.1890 of 2010 5 no specimen impression of the seal in the seizure mahazar, we cannot say that the seal seen on the sample bottle was affixed at the time of taking the sample at the scene of occurrence. Since there arises a doubt as to the genuineness of the sample analysed by the Chemical Examiner, the revision petitioner has to be given the benefit of that doubt. 9. In **Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347]** this Court held that specimen seal shall be affixed on the mahazar, on the sample bottle etc. and the detecting officer, who had drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample, and on the seizure mahazar etc. Further the detecting officer should also produce specimen of the seal before the court. 10. 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 Crl.R.P No.1890 of 2010 6 ## genuineness of the sample produced in the court. (See **Bhaskaran K. v. State of Kerala and another [2020 KHC 5296]** also). 11. When the mahazar do not contain any description as to the seal affixed on the sample, and evidence of detecting officer also do not contain the same, it cannot be concluded that it was the sample drawn from the liquid allegedly found in possession of the revision petitioner, was the sample subjected to chemical analysis. Merely because of the reason that the Chemical Analysis Report indicates presence of alcohol in the articles, the accused cannot be held guilty of the offences, unless the relationship of the said sample is established with the liquor seized from the possession of the appellants (See **Kumaran Narayanan and Others v. State of Kerala [2022 KHC 4448]** . 12. Keeping these legal prepositions in mind, let us see whether the detecting officer has complied with the essential requirements of seizure. At the time of detection and seizure, the mahazar is the primary document to be Crl.R.P No.1890 of 2010 7 prepared by the detecting officer, which will substantiate the seizure, and allied procedures followed at the scene of occurrence. Sample has to be taken from the contraband, allegedly possessed by the accused, and it has to be sealed with the sample seal. In order to ensure that the sample was taken from the contraband recovered from the possession of the accused, it will be sealed using the very same sample seal affixed in the seizure mahazar. That is a guarantee that the sample was sealed at the place of occurrence itself, at the time of preparing the seizure mahazar. 13. In the case on hand, in Ext.P2 seizure mahazar, there is no specimen impression of the seal. But in the mahazar, it is stated that the detecting officer affixed his personal seal in the sample. But what was the nature of his personal seal is not mentioned anywhere in the mahazar. During his examination before court as PW1, nothing was spoken about the nature of the seal affixed on the sample bottle. No reason whatsoever is offered by him for not affixing the sample seal in the mahazar itself. Ext.P3, Crl.R.P No.1890 of 2010 8 according to PW1, is the sample seal which was produced before court. In Ext.P3, the date is mentioned as 13.11.2001, i.e., the date of detection itself. But since that seal does not find a place in the seizure mahazar, and the description as its nature is not stated in the seizure mahazar, we cannot say that the said sample seal was used for sealing the sample at the place of occurrence. Manipulation of such a document after seizure, and after preparation of the mahazar, cannot be ruled out. So a genuine doubt arises as to the seal with which the sample bottle was sealed. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. (See **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** & **Bhaskaran v. State of Kerala [2020 KHC 5296 : 2020 (5) KLT Online 1057]** ). 14. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, whereby the sample taken from the contraband seized from the accused, reached the hands of the Chemical Examiner. Since the seal affixed Crl.R.P No.1890 of 2010 9 on the sample bottle becomes doubtful as there was no specimen impression of the seal in the seizure mahazar, we cannot say that the link evidence was established by the prosecution. (See **Sasidharan v. State of Kerala [2007 (1) KLT 720]** ). 15. Since the seizure mahazar does not contain the specimen impression of the seal, and the nature of the seal is not clearly stated in the seizure mahazar, it has to be held that prosecution failed to establish the link evidence. 16. The next contention is that, the revision petitioner was not arrested at the time and place as alleged by the prosecution, and nothing was recovered from his possession also. He is relying on the testimony of PW3, the independent witness, who according to the prosecution, witnessed the arrest and seizure. He turned hostile to the prosecution and deposed that he did not see any such incident. DWs 1 and 2 were examined by the revision petitioner to say that he was not arrested by the Excise officials on 13.11.2001 at 06.00 a.m. DWs 1 and 2 deposed that they are working in Crl.R.P No.1890 of 2010 10 Kanhangad market, and the revision petitioner also was working there, for about 15 years. On 13.11.2001 morning, an Excise official reached the market and asked the revision petitioner to report before the Excise Office. DW1 accompanied the revision petitioner to the Excise Office, and there the revision petitioner was taken into custody. Learned counsel for the revision petitioner would submit that the testimony of DWs 1 and 2 coupled with the testimony of PW3 will negate the case of the prosecution that the revision petitioner was found transporting ten litres of wash on 13.11.2001 at 06.00 a.m. Moreover, no arrest intimation was prepared or issued. That also according to the revision petitioner will speak against the arrest of the revision petitioner at the time and place as alleged by prosecution. It is true that no arrest intimation is seen prepared or produced before the court. So it casts doubt regarding the genuineness of the arrest, at the relevant date and time. The revision petitioner is entitled to get the benefit of that doubt also. Crl.R.P No.1890 of 2010 11 17. Though the occurrence was on 13.11.2001, the final report was seen filed before court only on 05.11.2004. Ext.P6 Chemical Analysis Report was issued on 26.04.2023. Even after getting the Chemical Analysis Report, there is delay of more than one and a half years, to file the final report. There is delay of more than three years in filing the final report after the date of occurrence. That delay is not explained by the prosecution. 18. In **Chandran v. State [2016 (5) KHC 650]** , this Court held that when there is unexplained delay in completing the investigation and filing the final report, it is fatal to the prosecution. 19. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. Inordinate delay in filing the final report has to be explained satisfactorily by the prosecution. (See **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** ). 20. In the case on hand, though there was delay of Crl.R.P No.1890 of 2010 12 about three years in filing the final report, no explanation whatsoever has been offered by the prosecution. So it turns fatal to the prosecution case. Without noticing the aforementioned vital and material aspects, the trial court as well as the appellate court found the revision petitioner guilty under Section 55(g) of the Abkari Act. So the conviction and sentence are liable to be interfered with. 21. In the result, the impugned judgments of conviction and sentence are set aside. The revision petitioner is found not guilty of the offence under Section 55(g) of the Abkari Act 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/-