Cholayil Chandran Nellipoyil Amsom and Desom v. State of Kerala

**Crl.R.P.No.1984 of 2005 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 11[TH] DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CRL.REV.PET NO. 1984 OF 2005** **(AGAINST THE JUDGMENT DATED 7.2.2005 OF SESSIONS** **COURT,KOZHIKODE** **CRA NO.285/2003 PREFERRED AGAINST THE CONVICTION AND SENTENCE ENTERED BY THE ASST. SESSIONS COURT, KOZHIKODE IN SESSIONS CASE NO.347 OF 2001 BY ITS JUDGMENT DATED 4.4.2003** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** CHOLAYIL CHANDRAN NELLIPOYIL AMSOM AND DESOM, POTHANKODE,KODENCHERRY,KOZHIKODE DISTRICT. BY ADV SRI.P.V.ANOOP ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV SHRI.RENJIT GEORGE ## **OTHER PRESENT:** PP - RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Crl.R.P.No.1984 of 2005 2** ## **VIJU ABRAHAM,J** **----------------------Crl.R.P.No.1984 of 2005 ------------------------------------Dated this the 11[th] day of October, 2023** ## **ORDER** The revision petitioner is the accused in S.C. No.347 of 2001 on the file of the Assistant Sessions Judge, Kozhikode alleging commission of offence punishable under Section 55(a) and (i) of the Abkari Act. 2. The prosecution allegation is that on 19.4.2000 at about 8.40 pm, a police party led by the Circle Inspector, Thamarassery, while on patrol duty through Anakkampoyil, Pulloorampara Road apprehended the revision petitioner/accused. It is alleged that the revision petitioner was found to be in possession of Indian Made Foreign Liquor and was also found selling it. He was alleged to have been arrested from near a fish stall at Pulloorampara while he was conducting sale of liquor and at the time of his arrest, he was in possession of three bottles containing ## **Crl.R.P.No.1984 of 2005 3** liquor having the label, “XXX Rum SALSA”, an amount of Rs.1,380/-, two bottles containing water and two measuring glasses. Out of the three bottles, two bottles contained 750 ml of liquor with the factory seal intact and the third bottle contained 350 ml of liquor. The bottles, the currency and other articles were seized and a crime was registered. 3. To prove the case of the prosecution PWs.1 to 7 were examined and Exts.P1 to P9 were marked and MOs.1 to 4 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 the accused was convicted and sentenced to undergo simple imprisonment for one year 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.285 of 2003 before the Sessions ## **Crl.R.P.No.1984 of 2005 4** Judge, Kozhikode. 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. Though the occurrence was on 19.4.2000, the contraband and the samples were produced before the court only on 26.4.2000, there is an inordinate delay of more than 6 days. Yet another contention raised by the petitioner is that no specimen seal is seen affixed on Ext.P1, nor description of the seal affixed in the sample is also not stated in Ext.P1 seizure mahazar. Another contention raised by the petitioner is that though the occurrence was on 19.4.2000 and the sample was produced before the court on 26.4.2000, Ext.P9 forwarding note is seen prepared and submitted before the court only on 5.7.2000, the said delay is not explained, which is fatal to the case of the prosecution. The petitioner would further submit that there is an inordinate delay ## **Crl.R.P.No.1984 of 2005 5** in completing the investigation. The occurrence was on 19.4.2000, whereas the chemical analysis report was ready on 13.12.2000 and the complaint was filed only on 5.10.2001, and the same was against the mandate of Section 50 of the Abkari Act. 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 are not shown to be performed properly, as held in ## **Crl.R.P.No.1984 of 2005 6** **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 learned counsel for the revision petitioner. The occurrence was on 19.4.2000, the contraband and the samples were produced before the court only on 26.4.2000, there is an unexplained, inordinate delay of more than 6 days. Ext.P9 forwarding note is seen prepared and submitted before the court only on 5.7.2000, the said delay is not explained, which is fatal to the case of the prosecution. This court in **Ramachandran v.** **State of Kerala (2021 (1) KLT 793** has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its ## **Crl.R.P.No.1984 of 2005 7** production before the court. Hence, I am of the opinion that the unexplained inordinate delay is fatal to the case of the prosecution. In **Chandran** ## **@ Chandrashekaharan v. State (2016 (5) KHC 650)** this court has held in paragraph 11 as follows: _“11. It is also to be noted that even though the contraband article was seized on 7.1.2006, the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is only for one day, particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence regarding the safe custody of the sample till its production before the court.”_ ## **Crl.R.P.No.1984 of 2005 8** 9. Yet another contention raised by the petitioner is that no specimen seal is seen affixed on Ext.P1, nor description of the seal affixed in the sample is also not stated in Ext.P1 seizure mahazar. 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. 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 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** ## **Crl.R.P.No.1984 of 2005 9** **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. 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 ## **Crl.R.P.No.1984 of 2005 10** 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 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 petitioner would further submit that ## **Crl.R.P.No.1984 of 2005 11** there is an inordinate delay in completing the investigation. The occurrence was on 19.4.2000, whereas the chemical analysis report was ready on 13.12.2000 and the complaint was filed only on 5.10.2001, and the same was against the mandate of Section 50 of the Abkari Act. Further, it is to be noted that Ext.P9 forwarding note is seen prepared and submitted before the court only on 5.7.2000, i.e., almost after four months of the alleged seizure. 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 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 ## **Crl.R.P.No.1984 of 2005 12** 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_ ## **Crl.R.P.No.1984 of 2005 13** _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 **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_ ## **Crl.R.P.No.1984 of 2005 14** _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 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. ## **Crl.R.P.No.1984 of 2005 15** 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. **==> picture [391 x 13] intentionally omitted <==** 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