Binoy Mappalayil v. State of Kerala (Excise Inspector, Peermadu Range, Idduki District)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945 CRL.REV.PET NO. 4054 OF 2009** **(AGAINST THE JUDGMENT IN CRA 47/2008 DATED 22.8.2009 ON THE FILE OF THE SESSIONS COURT,THODUPUZHA AND CONVICITION AND SENTENCE AGAINST THE REVISION PETITIONER IN THE JUDGMENT IN SC NO.438/2006 ON THE FILE OF THE ASST. SESSIONS JUDGE, KATTAPPANA)** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** BINOY MAPPALAYIL HOUSE, PERUVANTHANAM VILLAGE,, THEKKEMALA KARA, PEERMADU TALUK, IDUKKI DISTRICT. BY ADV SRI.NIREESH MATHEW ## **RESPONDENT:** STATE OF KERALA EXCISE INSPECTOR, EXCISE RANGE OFFICE, PEERMADU, IDUKKI DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR- RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.R.P.No.4054 of 2009** 2 ## **VIJU ABRAHAM,J -----------------------** ## **Crl.R.P.No.4054 of 2009 ------------------------------------Dated this the 27[th] day of September, 2023** ## **ORDER** The revision petitioner is the accused in S.C.No.438 of 2006 on the file of the Assistant Sessions Judge, Kattappana alleging commission of offence punishable under Section 8(1) and (2) of the Abkari Act. 2. The prosecution case is that the Excise Inspector of Peermade Range, accompanied by the Preventive Officer and other officials while conducting patrol duty at around 4.00 p.m on 24.1.2004, nearby the T.R & T Estate situated at Chennapparamukal kara in Peruvanthanam Village, found out the accused transported around 15 litres of arrack in a 35 litres volumed plastic can. He was arrested from the place and seized the contraband article from the possession of the accused. 3. On the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to P8 and MO1 were **Crl.R.P.No.4054 of 2009** 3 marked. 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 convicted and sentenced to undergo simple imprisonment for a period of 5 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year. 5. Aggrieved by the said conviction and sentence, an appeal was preferred as Crl. Appeal No.47 of 2008 before the Sessions Court, Thodupuzha, but the appeal was dismissed confirming the conviction and sentence passed by the trial court. Aggrieved by the same, the present Crl.Revision Petition is filed. 6. The petitioner raised the following contentions assailing the order of conviction and sentence imposed by the Courts below. The primary contention raised by the petitioner is that there is no arrest intimation in this case, which is fatal to the case of the prosecution. Further **Crl.R.P.No.4054 of 2009** 4 contention raised is that in Ext.P4 seizure mahazar it is specifically stated that the sample was taken at the spot and the label has been affixed wherein the signature of the accused, the witnesses and the detecting officer is endorsed. It has come out in evidence that the label affixed in MO1 is not there. It is further contended by the learned counsel for the petitioner that in Ext.P4 mahazar, no specimen seal is seen affixed. Further contention raised is that in Ext.P7 forwarding note, no seal is seen affixed. It is also contended that in Ext. P7 forwarding note, the name of the officer through which the alleged contraband is forwarded to the chemical analysis laboratory is not stated. Though his name is stated in the chemical analysis report, the learned counsel for the petitioner would submit that the same is not sufficient. He further raised a contention that though the alleged sample was forwarded by the court on 30.1.2004, it reached the chemical analysis laboratory on 31.1.2004 and the delay has not been explained by **Crl.R.P.No.4054 of 2009** 5 the prosecution by examining the person through which the contraband was sent for chemical examination or the thondi clerk attached to the court. Yet another contention raised by the learned counsel for the revision petitioner is that though the occurrence was on 24.1.2004, the final report was filed only on 16.5.2006, even though the chemical analysis report was made available on 20.5.2005. There is a long unexplained delay in completing the investigation which goes against the mandate of Section 50 of the Abkari Act and the same is fatal to the case of the prosecution. 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 **Crl.R.P.No.4054 of 2009** 6 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. The first contention raised by the petitioner is that there is no arrest intimation in this case, which is fatal to the case of the prosecution. 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 the noncompliance of mandatory requirements regarding arrest makes the **Crl.R.P.No.4054 of 2009** 7 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. Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 9. The next contention raised is that in Ext.P4 seizure mahazar it is specifically stated that the sample was taken at the spot and the label has been affixed wherein the signature of the accused, the witnesses and the detecting officer is endorsed. It has come out in evidence that the label affixed in MO1 is not there. Nonaffixture of the label in MO1 containing the signature of the accused, the witness and detecting officer makes the case of the prosecution regarding seizure of the alleged contraband and taking sample at the spot doubtful. Another contention raised is that no specimen seal is seen affixed in Ext P4 mahazar and in Ext.P7 forwarding note. This court in **Crl.R.P.No.4054 of 2009** 8 **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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. 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 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 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)** **Crl.R.P.No.4054 of 2009** 9 **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 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 **Crl.R.P.No.4054 of 2009** 10 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 v. State of Kerala, 2023 (1) KLT 371.** 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. As regards the further contention that in Ext. P7 forwarding note, the name of the officer through which the alleged contraband is forwarded to the chemical analysis laboratory is not stated and that there is an unexplained delay in reaching the sample before the chemical analysis laboratory from the court. 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 in such circumstance, the prosecution ought to have examined the thondi clerk of the court or the guard who had taken the sample to the **Crl.R.P.No.4054 of 2009** 11 analyst so as to prove the tamper-proof despatch of the sample to the laboratory. A similar view was taken by this court in **Kumaran v. State of** **Kerala, 2016 (4) KLT 718** . In **Krishnadas v. State of Kerala, 2019 KHC 191,** this court has held that the unexplained delay in between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. Since the said procedure has not been followed by the prosecution, the accused is entitled to the benefit of doubt. 11. The learned counsel for the petitioner further raised a contention that though the occurrence was on 24.1.2004, the final report was filed only on 16.5.2006, even though the chemical analysis report was made available on 20.5.2005. There is a long unexplained delay in completing the investigation which goes against the mandate of Section 50 of the Abkari Act and the same is fatal to the case of the prosecution. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State** **Crl.R.P.No.4054 of 2009** 12 **(2016 (5) KHC 650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1)** **KLT 744** in support of his contentions. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. 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_ **Crl.R.P.No.4054 of 2009** 13 _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. 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 **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. As per Section 50 of **Crl.R.P.No.4054 of 2009** 14 the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. 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. 12. 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 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. sd/- **VIJU ABRAHAM, JUDGE** pm