Crl. Revision Petition No. 3528 of 2010

## _`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. 3528 OF 2010`_ ``` AGAINST THE JUDGMENT DATED 26.10.2010 IN CRL.A. No. 724/2007 ON THE FILE OF ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA AND JUDGMENT DATED 12.09.2007 IN ``` ``` SC 521/2005 ON THE FILE OF ASSISTANT SESSIONS JUDGE,IRINJALAKUDA ``` ## _`REVISION PETITIONERS/APPELLANTS/ACCUSED 1 & 2:`_ ``` 1MANI, S/O VELAYUDHAN, KATTAYIL HOUSE, PARIYARAM VILLAGE,, MOTHIRAKANNI DESOM. 2JOSE, S/O.DEVASSY MEKKANATTU HOUSE PARIYARAM VILLAGE, MOTHIRAKANNI DESOM. BY ADVS. SRI.SHEEJO CHACKO SRIA.G.UNNIKRISHNAN ``` ## _`RESPONDENT/RESPONDENT/COMPLAINANT:`_ ``` STATE OF KERALA SUB INSPECTOR OF POLICE, CHALAKUDY, THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ## _`OTHER PRESENT:`_ ``` SR.P.P. SHRI RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 3528 of 2010 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl. Revision Petition No. 3528 of 2010 **========================** ## _**O R D E R**_ **Dated this the 20[th] day of November, 2023** This revision petition is at the instance of accused Nos. 1 and 2 in S.C. No.521 of 2005 on the file of Assistant Sessions Judge, Irinjalakuda, assailing the judgment in Crl. Appeal No.724 of 2007 on the file of Additional Sessions Judge, Irinjalakuda, which upheld their conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 22.10.2003 at 4.45 p.m., the revision petitioners were found selling arrack in the rubber estate of one Mr. Mathew at Mothirakkany. PW8, the Sub Inspector of Police, Chalakkudy and party, who were on patrol duty, detected the offence. On seeing the police party, revision ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** petitioners ran away, but they could chase and nab the 1[st] revision petitioner (A1) with a two litre can containing one litre of illicit liquor. The 2[nd] revision petitioner escaped and while running away he left a ten litre can, but its contents were oozed out. Sample from the contraband seized from the possession of the 1[st] accused was taken and after completing all legal formalities, the 1[st] revision petitioner along with the records and articles seized were produced before the police station and thereafter, before the jurisdictional Magistrate. 3. PW8, the detecting officer himself conducted the initial investigation and PW9 completed the investigation and laid charge sheet against the revision petitioners under Sections 8(1) and 8(2) of the Abkari Act. 4. On appearance of the revision petitioners before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which, they pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 9, marked ``` Crl.R.P. No. 3528 of 2010 ``` ``` ..4.. ``` Exts.P1 to P10, and identified MO1 to MO4, to prove its case. 5. On closure of the prosecution evidence, the revision 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 hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision petitioners guilty under Sections 8(1) and 8(2) of the Abkari Act, and they were convicted and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for a further period of six months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioners preferred Crl. Appeal No.724 of 2007. The appellate court, on re-appreciating the facts and evidence, found nothing to interfere with the conviction and sentence imposed by the trial court, and hence, the appeal was ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** dismissed, against which they have preferred this revision petition. 8. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent judgments of the trial court as well as the appellate court, convicting and sentencing the revision petitioners under Sections 8(1) and 8(2) of the Abkari Act. 9. Though PWs 1 to 3, the independent witnesses, were examined by the prosecution to prove the incident, all of them turned hostile and they did not support the prosecution case. Though the official witnesses stated the incident in tune with the prosecution case, learned counsel for the revision petitioners would submit that, there were material defects which were sufficient to shake the veracity of the of the prosecution case. 10. The first point argued by the learned counsel for the revision petitioners is that there was no specimen impression of the seal in Ext.P1 seizure mahazar. On going through Ext.P1 ``` Crl.R.P. No. 3528 of 2010 ``` ``` ..6.. ``` seizure mahazar, it is seen that no specimen impression of the seal or details regarding the nature of seal affixed, were there in the seizure mahazar. 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_ ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** _seals on the bottles 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. Moreover, 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. Further the nature of the seal used shall be mentioned in the seizure mahazar also._ 14. It is the case of the prosecution that, the police party found the revision petitioners in the rubber estate of one ``` Crl.R.P. No. 3528 of 2010 ``` ``` ..8.. ``` Mr. Mathew, selling arrack. They arrested the 1[st] revision petitioner (A1) at the spot, though the 2[nd] revision petitioner (A2) ran away leaving his can. Ext.P5, the arrest memo of the 1[st] accused prepared at the scene of occurrence, shows the crime number, which was subsequently registered at Chalakudy police station. The crime number seen in Ext.P5 arrest memo casts a doubt regarding the genuineness of the arrest at the place of occurrence. If the 1[st] revision petitioner was arrested at the spot, the crime number will not find a place in that arrest memo, which was registered subsequently. So, a serious doubt is created regarding the genuineness of arrest of the 1[st] revision petitioner at the scene of occurrence, and the benefit of that doubt should go to him. 15. In Ext.P8 forwarding note, there is no specimen impression of the seal. It is stated in the forwarding note that, the seal used was that of the Station House Officer (SHO). There is no reason why that specimen seal was not impressed in the ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** forwarding note. Prosecution was duty bound to establish the link evidence to show that the sample seized from the possession of the revision petitioners at the place of occurrence was the very same sample which reached the court, and later the chemical examiner’s lab. The specimen impression of the seal affixed in the seizure mahazar as well as in the forwarding note provides the links to establish that, the sample having the very same specimen impression of the seal, reached the lab for chemical examination, and it will prove the genuineness of the sample analysed by the chemical examiner. Absence of specimen impression of the seal in the forwarding note also speaks against the prosecution, thereby the tamper proof despatch of the sample becomes doubtful. 16. In _**Gireesh v. State of Kerala**_ [2019 (4) KLT 79], this Court held that, the forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of specimen impression ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [37 x 7] intentionally omitted <==** of the seal in the forwarding note, prosecution could not establish the tamper proof despatch and the identity of the sample which was analyzed by the chemical examiner. Prosecution could 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. Prosecution has to prove all the links starting from the seizure till the date of its examination by the chemical examiner. Moreover, in the forwarding note, the name of the police official, who took the sample to the lab for examination is not mentioned, though in Ext.P10 chemical analysis report, it is sated that the sample packet reached the lab through Police Constable 3436. In order to give transparency to the procedure and also to show tamper proof despatch, the prosecution was duty bound to show the name of the person who took the sample to the lab, in the forwarding note itself. Since that has not been done, the tamper proof despatch becomes doubtful and the benefit of that doubt should go to the revision petitioners. ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [37 x 7] intentionally omitted <==** 16. Though the occurrence was on 22.10.2003, the 2[nd] revision petitioner was seen arrested only on 06.06.2004, after a gap about eight months. Prosecution has no case that the witnesses identified the 2[nd] revision petitioner (A2) after his arrest. The independent witnesses, as we have seen, turned hostile to the prosecution. So, prosecution failed to prove the identity of 2[nd] revision petitioner (A2) beyond doubt. As far as the 1[st] revision petitioner (A1) is concerned, as we have seen, since his arrest memo contains the crime number, which was prepared at a later point of time, the arrest at the time and place as stated by prosecution, comes under shadow of doubt. 17. Learned counsel for the revision petitioners pointed out that, the investigation in this case was done by PW8, who was the detecting officer, himself, and it caused great prejudice to the revision petitioners. Everyone will try to uphold his actions as upright, and it is a normal human tendency. Even if one’s action was found wrong later, his ego may not permit him to go back, to ``` Crl.R.P. No. 3528 of 2010 ``` **==> picture [37 x 7] intentionally omitted <==** make any corrections. When the detecting officer says that he found the revision petitioners selling arrack, he will be interested to see those persons prosecuted and punished. When he himself conducted the investigation, it cannot be said that his investigation was free from bias. So, it was desirable and feasible to get the investigation done by an independent officer who was not in the patrolling team, which detected the offence. So, when the revision petitioners say that they were aggrieved by the investigation done by the detecting officer, this Court finds some force in their argument. No reasonable explanation whatsoever has been offered by PW8, for conducting the investigation by himself, when he happened to be the detecting officer as well. 18. For the aforementioned reasons, the trial is vitiated. It has to be held that prosecution failed to prove its case beyond reasonable doubt. 19. In the result, the conviction and sentence imposed on the revision petitioners by the trial court as well as the appellate ``` Crl.R.P. No. 3528 of 2010 ``` ``` ..13.. ``` court under Sections 8(1) and 8(2) 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. The revision petition accordingly stands allowed. **Sd/-** **SOPHY THOMAS** **JUDGE** RMV ``` TRUE COPY P.A.TO JUDGE ```