## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`**
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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 6 [ TH ] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA,
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1945
CRL.REV.PET NO. 3330 OF 2005
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AGAINST THE JUDGMENT DATED 30.09.2005 IN CRL.APPEAL
NO.269/2004 OF IST ADDITIONAL SESSIONS COURT, KOZHIKODE
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SC 518/2001 OF ASSISTANT SESSIONS COURT, KOYILANDY
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## **`REVISION PETITIONER/APPELLANT/ACCUSED:`**
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BHARATHAN, S/O.CHANDU,
CHERUKKATTUVEETTIL, THALAKULATHUR, KOZHIKODE.
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BY ADV SRI.T.G.RAJENDRAN
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## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`**
- **`1 THE EXCISE INSPECTOR, CHELANNUR EXCISE RANGE.`**
- **`2 STATE OF KERALA`**
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REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
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## **`SHRI.T.R.RENJITH, PUBLIC PROSECUTOR`**
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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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Crl.R.P No.3330 of 2005 2
## **O R D E R**
This revision is at the instance of the accused in S.C.No.518 of 2001 on the file of Assistant Sessions Judge, Koyilandy, assailing the judgment in Crl.Appeal No.269 of 2004 on the file of Ist Additional Sessions Judge, Kozhikode, which upheld his conviction under Section 55(a) of the Abkari Act, though the sentence was modified and reduced to certain extent.
2. Prosecution case is that on 24.09.1999, at 07.30 a.m., the revision petitioner was found carrying five litres of illicit arrack in a plastic can through the public road in front of the house ‘Pushpa Nivas’ at Thalakulathur Amsom. PW1, the Excise Circle Inspector, Kozhikode and party, while on patrol duty, detected the offence. PW7 conducted the investigation and laid charge against the revision petitioner under Section 55(a) of the Abkari Act.
3. On appearance of the revision petitioner before the
trial court, charge was framed under Section 55(a) of the
Crl.R.P No.3330 of 2005 3
Abkari Act, to which he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 7, marked Exts.P1 to P7 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. Finding no ground to acquit the revision petitioner under Section 232 of Cr.P.C., he was asked to enter on defence evidence. DWs 1 and 2 were examined and Exts.D1 and D2 were marked from his part.
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(a) of the Abkari Act and he was convicted and sentenced to undergo simple imprisonment for three years, and fine of Rs.1,00,000/with a default sentence of simple imprisonment for a further period of two years.
5. Aggrieved by the conviction and sentence, the
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revision petitioner preferred Crl. Appeal No.269 of 2004. The appellate court, on re-appraisal of the facts and evidence, upheld his conviction under Section 55(a) of the Abkari Act, but the sentence was modified and reduced to simple imprisonment for two years, retaining the fine amount and its default sentence, against which, he has preferred this revision.
6. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of conviction and sentence imposed on the revision petitioner by the courts below.
7. Heard learned counsel for the revision petitioner
and learned Public Prosecutor.
8. Learned counsel for the revision petitioner is assailing the judgment, mainly on the ground that there were material defects in the prosecution case, which according him, are liable to vitiate the trial. First of all, he pointed out that there is no independent evidence to
Crl.R.P No.3330 of 2005 5
corroborate the testimony of PWs 1 to 3, to prove the arrest and seizure. Secondly, there is no proof for tamper proof despatch of the sample from the point of its seizure till the point of analysis in the Chemical Examiner’s Laboratory.
9. PW1 is the detecting officer. PWs 2 and 3 were accompanying him in the patrol party. All of them deposed that while doing patrol duty, they found the revision petitioner carrying a can with him and on getting suspicion, he was intercepted, and the contents of the can were tested by smell and taste, and it was found to be illicit arrack. So the revision petitioner was arrested then and there, and the contraband was seized and sample was taken. Ext.P2 seizure mahazar was prepared at the scene of occurrence itself, detailing the procedure of arrest, seizure, sampling, etc. In Ext.P2 seizure mahazar, specimen impression of the personal seal of PW1 is seen affixed. According to him, he used the very same seal, for sealing the sample bottle also. But he admitted before court that, he did not affix his
Crl.R.P No.3330 of 2005 6
personal seal in Ext.P6 forwarding note.
10. PW7, the investigating officer deposed that when the forwarding note was produced before him, there was no specimen impression of the seal affixed by PW1. So he telephoned PW1 and deputed two Excise Guards to get the specimen impression of the seal of PW1 in the forwarding note, before it was forwarded to the court. In the forwarding note, the personal seal of PW7 also is seen affixed. Though in Ext.P7 Chemical Analysis Report, the Chemical Examiner has reported that the seal on the bottle was intact and found tallied with the sample seal provided, we are not sure which was the seal found tallied with the seal affixed on the sample bottle, either it was the personal seal of PW1 or the personal seal of PW7, as both the seals were seen affixed in the forwarding note. So the statement in Ext.P7 that the seal on the bottle was intact and found tallied with the sample seal provided could not be given credence.
11. Learned counsel for the revision petitioner pointed
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out that the occurrence was at 07.30 a.m. and the revision petitioner along with the contraband seized were produced before the Excise Office at 08.30 a.m. But PW1 deposed that the thondy articles, sample bottle and the accused remained in the custody of two Excise Guards till 01.30 p.m. Those Excise Guards were not examined by the prosecution, to say that the sample taken from the contraband allegedly possessed by the revision petitioner was kept intact under their custody. Only at 01.30 p.m., the accused and the sample were sent to the Excise Range Office, through other two Excise Guards. On receipt of the records and sample before the Excise Range Office, PW7 registered Ext.P4 crime and occurrence report at 03.00 p.m. Only thereafter, the revision petitioner and the articles along with the records were forwarded to the jurisdictional Magistrate. Prosecution was duty bound to prove that, from 07.30 a.m. till the production before the Magistrate, the sample was kept intact, in a tamper proof condition.
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12. Ext.P7 Chemical Analysis Report shows that the sample bottle was forwarded from the court to the Chemical Examiner’s Laboratory on 24.09.1999. But it was seen received before the Laboratory only on 07.10.1999, with a delay of more than 13 days. The Excise Guard with whom the sample was sent to the Laboratory was not examined to explain the delay. The inordinate delay of 13 days in reaching the sample sent from court, to the Chemical Examiner’s Laboratory will speak against the tamper proof despatch of the sample.
13. DWs 1 and 2 were examined from the part of the revision petitioner to prove Exts.D1 and D2 general diary kept in the office of Excise Range Office, Chelannur, as well as the Excise Circle Office, Kozhikode. Those documents will show that after production of the revision petitioner before the Excise Circle Office at 08.30 a.m., the records, sample and the revision petitioner were under the custody of two Excise Guards till 01.30 p.m., and only at 03.00 p.m., the
Crl.R.P No.3330 of 2005 9
sample along with the records and revision petitioner reached the Excise Range Office.
14. In **Sasidharan v. State of Kerala [2007 (1) KLT 720]** , this Court held that prosecution is duty bound to prove that, the sample allegedly seized from the accused, eventually reached the hands of the Chemical Examiner in a tamper proof condition. When the sample seized, changed several hands before reaching the Chemical Examiner, the prosecution has to examine the persons, who handled the sample, to show that it was kept intact while it was under their custody.
15. In **Krishnadas v. State of Kerala [ 2019 KHC 191]** , this Court considered the impact of delay in reaching the sample before the Chemical Examiner. It was found that when there is delay and it is not explained properly, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused.
16. In the case on hand, prosecution has not explained
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the delay of more than 13 days in reaching the sample before the Chemical Examiner’s Laboratory after it was being sent from court.
17. PW1 deposed that he did not affix his personal seal in the forwarding note. PW7 admitted that before the records were forwarded to the jurisdictional Magistrate, after intimating PW1 over telephone, he sent two Excise Guards to get the sample seal of PW1 affixed in the forwarding note. Non-affixture of specimen impression of the seal in the forwarding note at the time of its preparation as admitted by PW1 and subsequent affixture on request by PW7 etc. cast serious doubt as to the legality of the procedure undertaken by PW1 at the time of seizure of the contraband.
18. Another point to be noted is that the detection was by the Excise Circle Inspector, Kozhikode. But the investigation was seen done by PW7, the Excise Inspector of Chelannur Range, a subordinate officer of PW1. A subordinate Officer investigating a case, detected by his
Crl.R.P No.3330 of 2005 11
superior officer, may be in a delicate and embarrassing position to go against his superior officer, if at all his investigation reveals something which will have the effect of exonerating the accused from the allegations made against him. In **Xavier v. State of Kerala [ 1998 (1) KLT 686]** , this Court observed that when the complainant himself is a Police Official, the investigation should have been conducted
by his top ranking officer or else it will cause prejudice to the accused, as he will be deprived of his valuable rights to contradicting and corroborating the previous informations recorded under Sections 154 or 155 of Cr.P.C., and previous statement of the witnesses recorded under Section 161 of Cr.P.C.
19. Here is a case, where the detection, arrest and seizure were made by a superior officer, of which the investigation was undertaken by his subordinate officer, causing prejudice to the revision petitioner.
20. Adverting to the given facts and circumstances, it
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has to be held that the conviction and sentence of the revision petitioner by the courts below without noticing these material facts are liable to set aside.
21. In the result, the impugned judgments of conviction and sentence are hereby set aside and the revision petitioner is found not guilty of the offence punishable under Section 55(a) of the Abkari Act and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith.
The revision petition accordingly stands allowed.
Sd/- **SOPHY THOMAS, JUDGE**
DSV/-
