Bhuvanachandran Smitha Bhavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA,** ## **1945** **CRL.REV.PET NO. 2679 OF 2010** **AGAINST THE ORDER/JUDGMENT IN CRA 568/2008 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC)-II,** ## **THIRUVANANTHAPURAM** **SC 2002/2004 OF ASSISTANT SESSIONS COURT, NEDUMANGAD REVISION PETITIONER:** BHUVANACHANDRAN SMITHA BHAVAN, AP XIII/465,SILK FARM,VETTAMPALLY, MURI,ANAD VILLAGE. BY ADV SRI.P.V.ANOOP ## **RESPONDENTS:** STATE OF KERALA HIGH COURT OF KERALA,ERNAKULAM. ## **OTHER PRESENT:** PP - M.C.ASHI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.R.P.No.2679 of 2010 2** ## **VIJU ABRAHAM,J** **----------------------Crl.R.P.No.2679 of 2010 ------------------------------------Dated this the 18[th] day of December, 2023** ## **ORDER** The revision petitioner is the accused in S.C.No.2002 of 2004 on the file of the Assistant Sessions Judge, Nedumangad alleging commission of offence punishable under Section 8(1) and (2) of the Abkari Act. 2. The allegation against the accused is that on 10.07.2002 at 12 noon, accused were found in possession of 13 litres of arrack in their house No.AP-XIII/465 at Silk Farm at Anad Village in Nedumangad Taluk and thereby committed the abovesaid offence. 3. To prove the case of the prosecution, PWs.1 to 6 were examined and Exts.P1 to P8 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 was convicted and sentenced to undergo rigorous ## **Crl.R.P.No.2679 of 2010 3** imprisonment for 2 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for 3 months. 5. Aggrieved by the said conviction and sentence, the revision petitioner filed an appeal as Crl.Appeal No.568 of 2008 before the Additional Sessions Judge, Fast Track court (Adhoc-II), Thiruvananthapuram and the appellate court though confirmed the conviction passed by the trial court, but modified the sentenceand the appellant was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo simple imprisonment for 3 months. 6. Advocate Anju R.S, learned counsel for the revision petitioner raised the following contentions. Though, Ext P1 mahazar as well as evidence of PW2 and PW6 state that search memo was prepared and sent to the court, and only thereafter they proceeded to search, the same is not seen produced and marked in evidence. The only independent witness, PW1 turned hostile to the ## **Crl.R.P.No.2679 of 2010 4** prosecution. It is submitted that the nonproduction of search memo, or even a copy of the same coupled with the fact that the only independent witness, PW1, turned hostile, there is no credible evidence to prove the search and seizure of the contraband and thereupon the prosecution story becomes doubtful. Petitioner relies on the judgment in **Ramankutty v. Excise Inspector, 2021 (4) KLT 222** in support of his contention. Yet another contention raised is that in Ext P6 forwarding note, no specimen seal is affixed. The petitioner also contended that there is a huge delay in the completion of the investigation in as much as though the occurrence was on 10.04.2002 and the chemical analysis report was ready on 19.05.2003, the final report was filed only on 15.04.2004 and there is unexplained delay in completing the investigation, which is fatal to the case of the prosecution, especially in view of Section 50 of the Abkari Act. 7. Though it is true that the scope of interference by this court exercising revisional ## **Crl.R.P.No.2679 of 2010 5** 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. 8. Let me consider the contentions raised by the revision petitioner. The first contention raised is violation of Section 31 of the Abkari Act in as much as no search memo is seen produced and marked. It is submitted that the nonproduction ## **Crl.R.P.No.2679 of 2010 6** of search memo, or even a copy of the same coupled with the fact that the only independent witness, PW1, turned hostile, there is no credible evidence to prove the search and seizure of the contraband and thereupon the prosecution story becomes doubtful. The learned public prosecutor would submit that Ext P1 mahazar as well as evidence of PW2 and PW6 state that search memo was prepared and sent to the court, and only thereafter they proceeded to search. This court in **Ramankutty** ’s case cited supra held in paragraph 25, 26 and 27 as follows: _“25. PW1 in his deposition stated that he was a Preventive Officer and on getting the information he proceeded to the house of the accused after preparing a search memo. Even though he had stated that he had prepared a memo and sent it to the Magistrate's Court, the same is not seen produced or marked in evidence. Even the copy of the said memo purported to have been prepared under Section 31 of the Abkari Act was not marked in evidence._ _26. The normal procedure before searching a place is, as provided under Section 30 of the Abkari Act. Before searching a place on the basis of information received, a warrant must be obtained from a Magistrate, who must examine_ ## **Crl.R.P.No.2679 of 2010 7** _the informant and the statement must be reduced into writing. In circumstances where the search warrant cannot be obtained, the officer can take the benefit of Section 31 of the Abkari Act, under which, an Abkari officer must, before proceeding to search a place, make a record of the ground based on which he believes an offence under the Act has been committed. These are valuable safeguards for protecting the liberty of an individual. Compliance with such requirements forms the components of a just, fair, and reasonable procedure, as enshrined under Article 21 of the Constitution of India. Violation of Section 31 will therefore vitiate the search. A conviction based on an invalid search cannot stand the test of law. In K.L.Subhayya v. State of Karnataka (1979 KLT Online 1088 (SC)=(1979) 2 SCC 115), the Supreme Court while considering similar provisions under the Mysore Excise Act held that “ it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S.54 were not at all complied with. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Ss.53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment”. The situation in the instant case is almost similar and the conviction of the appellant is therefore liable to be set aside._ ## **Crl.R.P.No.2679 of 2010 8** _27. There is yet another aspect of the matter which is of relevance when viewed in the light of the absence of the search memo. The independent witnesses, examined to prove the seizure and arrest of the accused in their evidence as PW3 and PW4, turned hostile to the prosecution. They stated that they had not seen the arrest or the seizure and that they were told to put their signatures on paper, for enabling the grant of bail to the accused. The cross examination by the Prosecutor could not cause any dent in the evidence they gave. In the absence of the memo under Section 31 and the lack of any credible independent evidence to prove the search and seizure of the contraband, the prosecution story becomes doubtful and the accused is entitled to be given the benefit of doubt.”_ In view of the same, I find considerable force in the argument of the learned counsel for the revision petitioner and uphold the contention raised by the Revision petitioner. 9. Yet another contention raised is that in Ext P6 forwarding note, no specimen seal is affixed, making the prosecution case doubtful. 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 ## **Crl.R.P.No.2679 of 2010 9** 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. 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 **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, 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 ## **Crl.R.P.No.2679 of 2010 10** there. 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 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. In view of the lacuna pointed out above, it is to be held that the prosecution could ## **Crl.R.P.No.2679 of 2010 11** 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. Yet another contention raised by the revision petitioner is regarding the delay in completion of the investigation. The occurrence was on 10.04.2002 and the chemical analysis report was ready on 19.05.2003, the final report was filed only on 15.04.2004 and there is unexplained delay in completing the investigation, which is fatal to the case of the prosecution, especially in view of Section 50 of the Abkari Act. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** , _**Surendran and Another v. State of Kerala 2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4) KLT**_ ## **Crl.R.P.No.2679 of 2010 12** _**718**_ and the decision in **Moothedath Sivadasan v.** **State of Kerala, 2021 (1) KLT 744** in support of his contentions. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998._ ## **Crl.R.P.No.2679 of 2010 13** _Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” In **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and_ ## **Crl.R.P.No.2679 of 2010 14** _the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 11. The above vital aspects were not 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 ## **Crl.R.P.No.2679 of 2010 15** 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 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