Chacko s/o Mathai v. State of Kerala

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 ``` ## _`CRL.REV.PET NO. 1275 OF 2012`_ ``` AGAINST THE JUDGMENT IN SC 486/2005 OF PRINCIPAL ASSISTANT SESSIONS JUDGE, THRISSUR, DATED 31.10.2007 AS MODIFIED BY THE JUDGMENT CONVICTION AND SENTENCE IN CRL.APPEAL No. 819/2007 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK ``` ``` COURT NO.I, THRISSUR, DATED 22.04.2010 ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` CHACKO S/O.MATHAI, THAZHATHEDATH HOUSE, MAILIKKUTTIMUKKU DESOM, MAMANGALAM VILLAGE. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN ``` ## _`RESPONDENTS/RESPONDENTS/COMPLAINANT:`_ ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## _`OTHER PRESENT:`_ ``` P.P.-SHRI SANAL P. RAJ ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 1275 of 2012 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl. Revision Petition No. 1275 of 2012 ## **=======================** ## _**O R D E R**_ **Dated this the 06[th] day of December, 2023** This revision is at the instance of the accused in S.C. No.486 of 2005 on the file of Principal Assistant Sessions Judge, Thrissur, assailing the judgment in Crl. Appeal No.819 of 2007 on the file of Additional District and Sessions Judge, Fast Track Court-I, Thrissur, which upheld his conviction under Sections 8(1) and 8(2) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that on 25.03.2002, at 2.10 p.m., the revision petitioner was found in possession of 15 litres of arrack in two plastic cans. PW1, the Circle Inspector of Police attached to Excise Enforcement and Anti-narcotic Special Squad, Thrissur and party detected the offence, while on patrol duty. The ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** revision petitioner was arrested and the contraband was seized. PW8, Excise Circle Inspector investigated the case and laid charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which, he pleaded not guilty. Thereupon, prosecution examined PWs.1 to 8 and marked Exts.P1 to P12, and identified MO1 and MO2, to prove its case. 4. 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 DW1 was examined from defence side. 5. On hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act and he was convicted and sentenced to undergo ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** rigorous imprisonment for a period of three years and fine of Rs.1,00,000/-, with a default sentence of rigorous imprisonment for a further period of six months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.819 of 2007. On re-appreciating the facts and evidence, the appellate court found nothing to interfere with the conviction, but the sentence was modified and reduced to rigorous imprisonment for a period of four months and fine of Rs.1,00,000/- with a default sentence of simple imprisonment for a period of one month, against which he has preferred this revision. 7. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the trial court as well as the appellate court convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 8. Heard learned counsel for the revision petitioner and ``` Crl.R.P. No. 1275 of 2012 ``` ``` ..5.. ``` ## learned Public Prosecutor. 9. Learned counsel for the revision petitioner is assailing the conviction and sentence, pointing out some material defects in the prosecution case, which according to him are sufficient to vitiate the trial. First of all, he invited attention of this Court to Ext.P1 seizure mahazar, prepared by PW1. It does not contain the specimen impression of the seal, though nature of the seal used is mentioned therein. In Ext.P11 forwarding note also, the specimen impression of the seal used in the sample bottle will not find a place. The name of the Excise guard with whom, the sample was forwarded to the chemical examiner's lab, is not mentioned in the forwarding note. Moreover, Ext.P12 chemical analysis report shows that, the sample which was forwarded from court on 04.05.2002, reached the lab only on 06.05.2002, with delay of two days, and there is no satisfactory explanation for that delay. Moreover, though the occurrence was on 25.03.2002, Ext.P4 scene mahazar, was seen prepared only on 15.05.2004. ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** The witnesses also were seen questioned in the year 2004, after a delay of more than two years. Prosecution failed to explain the delay in investigation and also in filing the final report, before court. 10. Now, let us see, whether the defects pointed out by learned counsel for the revision petitioner are capable of vitiating the trial. The prosecution is duty bound to prove tamper proof despatch of the sample, from the place where it was seized, till it reached the hands of the chemical examiner for analysis. The specimen impression of the seal affixed in the seizure mahazar prepared at the scene of occurrence, is a material evidence to verify the genuineness of the sample, which was supposed to be sealed at the spot with the very same sample seal, used in the seizure mahazar. The specimen impression of the seal used in the seizure mahazar, when tallies with the seal, with which the sample bottle was sealed, guarantees that the sample was taken at the time of detection itself, from the contraband allegedly seized ``` Crl.R.P. No. 1275 of 2012 ``` ``` ..7.. ``` from the possession of the revision petitioner, for which seizure mahazar was prepared. When the seizure mahazar does not contain the specimen impression of the seal, it will be a ground to doubt the genuineness of the seizure of the sample, and its sealing at the spot. 11. In _**Sasidharan v. State of Kerala**_ **[** 2007 (1) KLT 720] this Court held that, the prosecution has a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, reached the hands of the chemical examiner in a foolproof condition. 12 _._ In _**Moothedath Sivadasan v. State of Kerala**_ [2021 (1) KLT 744], this Court reiterated the importance of the specimen impression of the seal in the seizure mahazar, and it was found that in the absence of such specimen impression of the seal, it will be difficult to hold that the sample which reached the chemical examiner’s lab was the sample taken from the contraband allegedly seized from the possession of the accused. ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** 13. In _**Bhaskaran v. State of Kerala**_ [2020 KHC 5296], this Court underlined the necessity of the specimen impression of the seal in the seizure mahazar as well as in the forwarding note to verify the genuineness of the sample produced before the Court. 14. As pointed out by learned counsel for the revision petitioner, there was delay of two days in reaching the sample before the chemical examiner's lab, after it was being forwarded from the court. Prosecution failed to explain that delay, and the Excise Guard, with whom the sample was forwarded, was not examined to offer his explanation for the delay in reaching the sample before the chemical examiner’s lab. 15. In _**Krishnadas v. State of Kerala**_ [2019 KHC 191], this Court had occasion to consider the impact of delay in reaching the sample before the laboratory, and it was held that, when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [31 x 7] intentionally omitted <==** 16. Regarding the delay in investigation, and filing the final report also, the prosecution has not offered any explanation for the delay of more than two years, in preparing the scene mahazar, and in questioning the witnesses. As per section 50 of the Abkari Act, every investigation into the offences under the Act, shall be completed without unnecessary delay. 17. In _**Moothedath Sivadasan v. State Kerala of [**_ 2021(1)KLT 744], this Court deprecated the prosecution in filing the final report with a delay of two years. The unexplained delay in completing the investigation, and filing the final report, no doubt, would be fatal to the prosecution (See _**Chandran vs. State**_ MANU/KE/2035/2016 2016 (5) KHC 650, and _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718]). 18. Learned counsel for the revision petitioner would contend that, the revision petitioner was not arrested on 25.03.2002 at 2.10 p.m., as alleged by the prosecution, but, in fact, he was arrested from his house on 23.03.2006 at 7.00 p.m. ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [37 x 7] intentionally omitted <==** In order to substantiate that fact, DW1 was examined and the testimony of DW1 is to the effect that, the excise officials arrested the revision petitioner from his house on 23.03.2006, as he was campaigning against consumption of liquor along with DW1. DW1 was the president of ‘Madyavirudha Samiti’, and the revision petitioner was a member, and he had pasted some posters against the excise inspector, and due to that enmity, he was arrested from his house on 23.03.2006, and was produced before court on 25.03.2006, after implicating him in a false case. Though the testimony of DW1 could not be accepted for want of materials to substantiate, the material defects in the prosecution case pointed out earlier are sufficient to doubt the genuineness of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. 19. The conviction and sentence imposed on the revision petitioner by the courts below, without noticing these material defects are liable to be set aside. ``` Crl.R.P. No. 1275 of 2012 ``` **==> picture [37 x 7] intentionally omitted <==** 20. In the result, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act are hereby set aside. He is found not guilty of the offences alleged, 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** RMV