BALAN S/O RAMUNNI v. SUB INSPECTOR OF POLICE, AARALAM POLICE STATION & STATE OF KERALA

**Crl.R.P.No.1912 of 2010 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 CRL.REV.PET NO. 1912 OF 2010** **AGAINST THE JUDGMENT IN CRA NO. 653/2003 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, THALASSERY IN CC NO.1046/98 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, MATTANNUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** BALAN,S/O.RAMUNNI, KAKKANDY HOUSE, VEERPADU P.O., KANNUR. BY ADV SRI.CIBI THOMAS **RESPONDENTS:** 1 SUB INSPECTOR OF POLICE, AARALAM POLICE STATION. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. **OTHER PRESENT:** PP - RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.R.P.No.1912 of 2010 2** ## **VIJU ABRAHAM,J** **----------------------Crl.R.P.No.1912 of 2010 ------------------------------------Dated this the 29[th] day of September, 2023** ## **ORDER** The revision petitioner is the accused in Crime No.31 of 1997 of Aralam Police Station alleging commission of offence punishable under Sections 55(a) of the Abkari Act. 2. The allegation against the accused is that on 01.03.1997, he was found in possession of 25 packets of Karnataka labelled arrack containing nearly 100 ml each at a place called Karaparamb in Aralam Amsom Desom, without having sufficient documents in support of possessing the articles and thereby committed the above-said offence. 3. To prove the case of the prosecution PWs.1 to 6 were examined and Exts.P1 to P3 were marked and MO1 and MO2 were identified. 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was **Crl.R.P.No.1912 of 2010 3** convicted and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.25,000/-. The trial court has also allowed set off. 5. Aggrieved by the said conviction and sentence, the revision petitioner filed an appeal as Crl.Appeal No.653 of 2003 before the Additional Sessions Judge, Thalassery, and the appellate court confirmed the conviction and sentence passed by the trial court. 6. The petitioner raised various contentions assailing the order of conviction and sentence imposed by the Court below. The primary contention raised is that no arrest memo nor arrest intimation has been produced to prove the factum of arrest, seizure of contraband from the possession of the petitioner. Secondly, the seizure mahazar produced as Ext.P2, no specimen seal is seen affixed, nor the details of the seal affixed on the sample has been mentioned. The learned Counsel for the revision petitioner would further submit that there is no mention about any ## **Crl.R.P.No.1912 of 2010 4** sample being taken from the contraband seized. He would also submit that no forwarding note is seen produced and marked to prove the case of the prosecution. He would also submit that no property list is seen produced and marked. Therefore, it is contended that the prosecution could not prove the case against the petitioner beyond reasonable doubt. 7. 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 ## **Crl.R.P.No.1912 of 2010 5** 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. 8. The first contention raised by the learned counsel for the revision petitioner is that no arrest memo nor arrest intimation has been produced to prove the factum of arrest, seizure of contraband from the possession of the petitioner. The Apex Court in _**D.K.Basu v. State of West**_ _**Bengal (1997) 1 SCC 416**_ , has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest. This court in **Baburaj’s** case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore ## **Crl.R.P.No.1912 of 2010 6** the noncompliance of mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in **Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KLT SN 83** which held that noncompliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. This court in **Rafeeque v. Sub Inspector of** **Police, 2020 (4) KLT 188** has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT** **371** . Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 9. Another contention raised by the learned counsel for the revision petitioner is that in the seizure mahazar produced as Ext.P2, no specimen seal is seen affixed, nor the details of the seal ## **Crl.R.P.No.1912 of 2010 7** affixed on the sample has been mentioned. It is also contended that there is no mention in Ext P2 seizure mahazar regarding any sample being taken from the contraband seized. He would further contend that no forwarding note is seen produced and marked so also the property list. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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 ## **Crl.R.P.No.1912 of 2010 8** 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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. 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 **Nadarajan 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 produced and 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 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** ## **Crl.R.P.No.1912 of 2010 9** **SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** A similar view was taken by this court in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** and held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. This court in **Sasidharan v. State of Kerala, 2007 (1) KLT 720** has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition. Relying on the judgment of the Apex Court in **State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314** , this court in **Sasidharn** ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the ## **Crl.R.P.No.1912 of 2010 10** seal of the sample has not been tampered with. 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. A similar view was taken by this court in **Udayan's** case cited supra **.** The nonproduction of the property list in the trial and also lack of evidence regarding the sample being taken from the contraband seized also cast a doubt on the prosecution case regarding the alleged seizure of the contraband from the possession of the petitioner. 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. 10. The above vital aspects were not ## **Crl.R.P.No.1912 of 2010 11** considered by the courts below while 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** pm