CRL.REV.PET NO. 2163 OF 2007 - Vasudevan Kochuputhenparambil v. Excise Inspector, Karthikappally & State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 2163 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 411/2006 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC)-II, ALAPPUZHA ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 629/2005 OF ASSISTANT SESSIONS ``` ## **`COURT, ALAPPUZHA`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` VASUDEVAN KOCHUPUTHENPARAMBIL, KARUVATTA THEKKUM MURI,, KUMARAPURAM VILLAGE, KARUVATTA. BY ADV SRI.M.R.ARUN KUMAR ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** - **`1 EXCISE INSPECTOR,KARTHIKAPPALLY KARTHIKAPPALLY.`** ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ## **`PP-SMT.NIMA JACOB`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the accused in S.C. No.629 of 2005 on the file of Additional Assistant Sessions Judge, Alappuzha, assailing the judgment in Crl.Appeal No.411 of 2006 on the file of Additional Sessions Judge (Fast Track Court-II), Alappuzha, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 08.02.2003 at about 8.00 p.m., while PW1 and excise party were doing patrol duty, they found the revision petitioner carrying two litres of arrack, through the road margin in front of the stationery shop of one Mr. Mohanan Nair at Karuvatta village. The contraband was seized, the revision petitioner was arrested, and the seizure mahazar was prepared. 3. After completing the legal formalities, the revision petitioner along with the contraband seized and the records prepared, were produced before the Excise ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** Range Office, Haripad, where crime was registered against him. PW5 investigated the case and laid charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 4. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined, Exts.P1 to P6 were marked and Mos.1 and 2 were identified from the side of prosecution, to prove its case. 5. 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. DW1 was examined from the side of the revision petitioner. 6. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** 8(1) and 8(2) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for two years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of six months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.411 of 2006. The appellate court, on reappreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision. 8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments 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. 9. When the revision petition was taken up for consideration on 27.09.2023, learned counsel for the revision petitioner reported that, the revision petitioner was ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** no more. On 19.10.2023, learned counsel for the revision petitioner sought time to implead the legal representatives of the deceased revision petitioner. On instructions, learned Public Prosecutor obtained a report from the Excise Inspector, Excise Range Office, Karthikappalli, reporting the death of the revision petitioner along with a copy of his death certificate, showing that the revision petitioner passed away on 25.10.2012. 10. Today, when the revision petition is taken up for consideration, learned counsel for the revision petitioner submitted that, the legal representatives of the deceased revision petitioner are not interested to prosecute this matter, and so, he is not in a position to implead them. Since the revision petitioner is no more, the substantive sentence of two years will get abated. But, the fine amount of Rs.1 lakh will not get abated, and if the revision petitioner has left any assets of his own, it will be proceeded against for realizing the fine amount. So, learned counsel for the revision petitioner sought ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** permission to argue the matter on merits, and he was granted permission. 11. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 12. Learned counsel for the revision petitioner is assailing the conviction and sentence, pointing out some material defects and irregularities in the prosecution case, which, according to him, are sufficient to vitiate the trial. First of all, he drew the attention of this Court to Ext.P1 seizure mahazar, which was allegedly prepared by PW1 at the time of detection. The seizure mahazar does not contain the specimen impression of the seal. The nature of the seal used for sealing the sample bottle also will not find a place in the seizure mahazar. The sample is supposed to be taken from the contraband seized from the possession of the accused, and seizure mahazar will be prepared at the scene of occurrence itself, and the seal used for sealing the sample will be the seal affixed in the seizure mahazar, and it will give authenticity to the sampling done at the ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** spot. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. [See **Moothedath Sivadasan** **v. State of Kerala** 2021 (1) KLT 744]. 13. When there is no specimen impression of the seal in the seizure mahazar, it is difficult to hold that, the sample which reached the chemical examiner’s laboratory was the sample taken from the contraband allegedly seized from the possession of the accused. The prosecution was duty bound to prove the link evidence that the sample which was taken from the contraband seized from the possession of the accused at the spot of detection, was the sample which reached the lab for chemical analysis. In the case on hand, as there is no specimen impression of the seal in the seizure mahazar, and the nature of the seal used to seal the sample bottle will not find a place in the seizure mahazar, and nothing was deposed by PW1-the detecting officer regarding the nature of the seal used to seal the sample bottle, it has to be held that prosecution ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** failed to establish the link evidence starting from the seizure, till the sample reached the hands of the analyst. 14. The next ground urged by learned counsel for the revision petitioner is that, no forwarding note is seen produced before the court, by the prosecution. The records marked from the side of the prosecution will not show the forwarding note. The forwarding note prepared at the scene of occurrence, bearing the specimen impression of the seal, is an assurance to prove tamper proof despatch of the sample from the place of its seizure, till it reaches the chemical examiner’s lab. Since the forwarding note is not seen produced or marked along with the documents, we are not in a position to verify whether the forwarding note contained specimen impression of the seal or not. The specimen impression of the seal in the forwarding note also will speak about the genuineness of the sample produced before the court, and in its absence, a doubt arises as to the genuineness of the sample, which reached the chemical examiner’s lab. The revision petitioner is entitled ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [37 x 9] intentionally omitted <==** to get the benefit of that doubt [See **Bhaskaran v. State of Kerala** 2020 KHC 5296]. 15. On going through Ext.P1 seizure mahazar, and Ext.P5 property list, it could be seen that, samples were taken in two bottles from the contraband seized from the possession of the revision petitioner. But, Ext.P6 chemical analysis report, shows that, only one sample bottle reached the chemical examiner’s lab for analysis. The prosecution failed to explain, where one bottle of sample was lost. The thondy clerk, who was the custodian of the two sample bottles produced before court, as per Ext.P5 property list, was not examined to explain how one sample bottle alone reached the chemical examiner’s lab for analysis. 16. Though in Ext.P6 chemical analysis report, the chemical examiner has reported that, the seal on the bottle was intact and found tallied with the sample seal provided, no sanctity could be attached to that statement, as there was no specimen impression of the seal in the seizure mahazar, and in the absence of forwarding note as such. ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [44 x 9] intentionally omitted <==** 17. The occurrence was on 08.02.2003, and the final report was seen filed only on 15.07.2005 i.e., after about 2½ years. The chemical report was received on 12.02.2004. Even after receipt of the chemical report, the final report was filed after a delay of about 1 ½ years. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. The unexplained delay in completing the investigation and filing the final report, is fatal to the prosecution. [See **Moothedath Sivadasan v. State of Kerala** 2021 (1) KLT 744 , **Kumaran P v. State of Kerala** 2016 (4) KLT 718, and **Chandran v. State** 2016 (5) KHC 650]. 18. The trial court without noticing the aforementioned material defects, convicted the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. So his conviction and sentence are liable to be interfered with. 19. In the result, the revision petition is allowed, ``` CRL.REV.PET NO. 2163 OF 2007 ``` **==> picture [44 x 9] intentionally omitted <==** setting aside the conviction and sentence imposed on the revision petitioner by the courts below. He is found not guilty of the offences punishable under Sections 8(1) and 8(2) of the Abkari Act 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** LU