Criminal Revision Petitions Nos.1182 of 2013 and 1238 of 2013, High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 1182 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 556/2011 OF ADDITIONAL DISTRICT ``` ``` AND SESSIONS COURT-II, KOZHIKODE ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 184/2009 OF ASSISTANT SESSIONS ``` ``` COURT, QUILANDY ``` ## **`REVISION PETITIONER/APPELLANT/1ST ACCUSED:`** ``` JIJIL ``` ``` S/O. ASHOKAN, AGED 27 YEARS, THEKKETHODI VAYAL HOUSE, KOKKALLUR, BALUSSERY ``` ``` BY ADV SRI.SUNNY MATHEW ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** - **`1 THE SUB INSPECTOR OF POLICE BALUSSERY POLICE STATION, KOZHIKODE DISTRICT.`** - **`2 STATE OF KERALA`** - **`REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** ## **`SRI. RENJIT GEORGE – SR.PP`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20.11.2023, ALONG WITH CRL.REV.PET.1238/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 1238 OF 2013 AGAINST THE ORDER/JUDGMENT IN CRA 556/2011 OF ADDITIONAL ``` ``` DISTRICT AND SESSIONS COURT-II, KOZHIKODE AGAINST THE ORDER/JUDGMENT IN SC 184/2009 OF ASSISTANT ``` ``` SESSIONS COURT, QUILANDY ``` ## **`REVISION PETITIONER/APPELLANT/2ND ACCUSED:`** ``` BIJITH KUMAR AGED 29 YEARS S/O.RAGHAVAN,PONNIYATH HOUSE, BALLUSSERY AMSOM AND DESOM ``` ``` BY ADV SRI.SUNNY MATHEW ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** - **`1 THE SUB INSPECTOR OF POLICE BALUSSERY POLICE STATION, KOZHIKODE DISTRICT`** - **`2 STATE OF KERALA`** ``` REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM ``` ## **`SRI. RENJIT GEORGE – SR.PP`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20.11.2023, ALONG WITH CRL.REV.PET.1182/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 3 ``` ## **ORDER** ``` [Crl.Rev.Pet Nos.1182 of 2013 and 1238 of 2013] ``` These revision petitions are at the instance of the accused Nos.1 and 2 respectively in S.C. No.184 of 2009 on the file of Assistant Sessions Judge, Koyilandy, assailing the judgment in Crl.Appeal No.556 of 2011 on the file of II[nd] Additional Sessions Judge, Kozhikode, which upheld their conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that, on 07.04.2008 at about 12.30 mid night, the revision petitioners were found travelling in a motor cycle bearing Registration No. KL-11-C 3290, carrying a plastic can. The revision petitioner in Crl.R.P No.1182 of 2013 (A1) was the rider and the revision petitioner in Crl.R.P No.1238 of 2013 (A2) was the pillion rider. PW6-the ASI and police party, while on patrol duty, intercepted their motor cycle and on examining the can, it was found that it contained 20 litres of illicit arrack. ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 4 ``` The revision petitioners were arrested and the contraband was seized. 3. After completing all the legal formalities, the revision petitioners were produced before Balussery Police Station along with the records and the contraband seized. Thereafter, they were produced before the Jurisdictional Magistrate Court. On completing investigation by CW9-the Sub Inspector of Police, Kakoor, PW7-the Sub Inspector of Police, Balussery, laid charge sheet against the revision petitioners, under Section 55(a) of the Abkari Act. 4. On appearance of the revision petitioners before the trial court, charge was framed under Section 55(a) of the Abkari Act, read over and explained, to which they pleaded not guilty and claimed to be tried. PWs.1 to 7 were examined, Exts.P1 to P12 were marked, and Mos.1 to 3 were identified from the side of prosecution, to prove its case. 5. On closure of prosecution evidence, the revision ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 5 ``` petitioners were questioned under Section 313 of Cr.P.C., and they denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 6. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioners guilty under Section 55(a) of the Abkari Act, and they were convicted and sentenced to undergo simple imprisonment for a period of one year and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of three months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioners preferred Crl. Appeal No.556 of 2011. The appellate court, finding no reason to interfere with the conviction and sentence imposed by the trial court, dismissed the appeal, against which the 1[st] accused preferred Crl.R.P No.1182 of 2013 and the 2[nd] accused preferred Crl.R.P No.1238 of 2013. ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 6 ``` 8. 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 petitioners under Section 55(a) of the Abkari Act. 9. Heard learned counsel for the revision petitioners and learned Public Prosecutor. 10. The revision petitioners are assailing the judgment mainly on technical grounds, which, according to them, are material defects capable of shaking the very foundation of the prosecution case. First of all, they pointed out that, in Ext.P1 seizure mahazar, no specimen impression of the seal was affixed, and the nature of the seal used was also not mentioned. On verifying Ext.P1 seizure mahazar, it could be seen that, the allegations made by the revision petitioners are true. It does not contain any specimen impression of the seal, and the nature of the seal used also is not mentioned. In a case like ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 7 ``` this, prosecution is bound to establish the link evidence that, the sample which was taken from the contraband allegedly seized from the possession of the accused persons at the spot was the very same sample which reached the chemical examiner’s lab. In order to ensure genuineness of the sample and transparency of the procedure, specimen impression of the seal affixed in the seizure mahazar, which is a document prepared at the time of detection, is a material factor. If the seal affixed in the seizure mahazar tallies with the seal seen on the sample bottle which reaches the chemical examiner's lab, it guarantees that, the seal on the sample bottle was also affixed at the place of occurrence, and we can infer tamper proof despatch of the sample. Since, there is no such specimen impression of the seal in the seizure mahazar, and the nature of the seal used was also not mentioned in the seizure mahazar, it gives room for suspicion regarding the genuineness of the sample, which was analysed by the ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 8 ``` chemical examiner at a later point of time. 11. In **Moothedath Sivadasan v. State of Kerala** [2021 (1) KLT 744], this Court held that, when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was 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. 12. Paragraph 12 of the decision **Moothedath Sivadasan** [2021 (1) KLT 744] reads thus; “12. No specimen impression of seal is seen affixed on Ext P1 seizure mahazar prepared by PW4. Further specimen impression of sample seal was not produced as an Exhibit in this case. Under the circumstances, 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. It appears from Ext P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml of clear and colourless liquid alleged to be spirit involved in Crime No 146/2000 of Iritty Police Station were received by the chemical examiner for chemical analysis. It is further stated in Ext P8 that the seals on the bottles ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 9 ``` were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. There is nothing on record to indicate that the sample seal was affixed in Ext P1 seizure mahazar. Thus, there is absolutely no evidence to establish that the prosecution has proved the sample seal or specimen impression of the seal alleged to have been affixed on the sample by PW4. In Rajamma v. State of Kerala (2014 (1) KLT 506] this Court held that in the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the accused.” ## 13. In **Bhaskaran v. State of Kerala** [2020 KHC 5296], this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the court to satisfy the genuineness of the sample produced in the court. ## 14. Paragraph 21 of the decision **Bhaskaran** ## [2020 KHC 5296] reads thus; “ 21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 10 ``` seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala : 2016 (1) KLD 391 : ILR 2016 (2) Ker 145 ). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014 (1) KLT 506).” ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 11 ``` 15. 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. 16. In **Madhavan v. State of Kerala** [2019 (4) KLT 18], this Court held that, the prosecution can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample, till the same reached the hands of the chemical examiner. ## 17. Paragraph 19 of the decision **Madhavan** [2019 (4) KLT 18] reads thus; “ 19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 12 ``` sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner.” 18. In the case on hand, there is no specimen impression of the seal in the seizure mahazar, and the nature of the seal used also is not mentioned in the seizure mahazar. So, prosecution failed to prove the link evidence to show that the sample which was taken at the spot, from the contraband seized from the possession of the revision petitioners, was the sample, which was subsequently examined by the chemical examiner. So, it is fatal to the prosecution. 19. In Ext.P10 forwarding note, the sample seal provided was that of SHO. But, PW2 who was a police official in the patrolling team, deposed before court that, the sample seal used was that of KP. Since the nature of ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 13 ``` the seal used is not mentioned in the seizure mahazar, we could not say which was the specimen seal, either KP or SHO affixed in the sample bottle. So, even though in Ext.P12 chemical analysis report, the chemical examiner reported that, the seals on the bottles were intact and found tallied with the sample seal provided, no sanctity could be attached to that statement. 20. Another important aspect pointed out by learned counsel for the revision petitioners is that, the occurrence was within the limits of Balussery Police Station. PW1-the ASI of police, Balussery Police Station detected the offence, while on patrol duty along with other police officials. But, the investigation was seen done by CW9-the SI of police, Kakoor. No incident occurred within the limits of Kakoor Police Station and so much so, SI of police, Kakoor had no right to conduct the investigation in Crime No.205 of 2008 registered before Balussery Police Station. The prosecution has not explained the reason why the investigation in this ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 14 ``` case was done by the SI of Police, Kakoor. Moreover, CW9the SI of police, Kakoor was not examined by the prosecution to explain the circumstances under which he conducted the investigation of a case registered before another police station. 21. When an incident occurred within the territorial limits of a particular police Station, normally crime will be registered in that police station only, and the investigation also will be done by the officials of that police station or their higher officials when the offences alleged are so serious which require investigation by a superior officer. The SHO of a particular police station cannot investigate a crime which occurred within the limits of another police station, unless he is authorised to do so by his superior officer by a written order, due to exigencies of service. Here no such authorisation or direction is seen produced and so the investigation done by CW9-the SI of Police, Kakoor was without any authority and it will vitiate the trial. ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 15 ``` 22. Learned counsel for the revision petitioners pointed out that, though the prosecution case is that, the revision petitioners were arrested on 07.04.2008 at mid night, no arrest intimation was given. In the arrest memo, it is mentioned that, their relatives will be intimated, but there is nothing on record to show that, arrest intimation of the revision petitioners were given to their relatives as stated in the arrest memo. So, that also violates the directions issued by the Apex Court in **D.K. Basu v. State of W.B** (1997 KHC 245). 23. For the reasons aforementioned, this Court finds that prosecution failed to prove its case beyond reasonable doubt. The material defects pointed out in the foregoing paragraphs are sufficient to create a suspicion regarding the genuineness of the prosecution case. The courts below did not take into account these aspects and so, the judgments of conviction and sentence imposed on the revision petitioners, are liable to be set aside. ``` Crl.R.P. Nos.1182 and 1238 of 2013 ``` ``` 16 ``` 24. In the result, the conviction and sentence imposed on the revision petitioners by the trial court as well as the appellate court under Section 55(a) of the Abkari Act are hereby set aside. They are found not guilty of the offences alleged, and they are acquitted under Section 235(1) of Cr.P.C. Their bail bonds are cancelled and they are set at liberty forthwith. These revision petitions accordingly stand allowed. **Sd/-** **SOPHY THOMAS JUDGE** LU