Crl.R.P No.1394 of 2012 v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY,THE2[ND]DAYOFNOVEMBER2023/11THKARTHIKA,1945 CRL.REV.PETNO.1394OF2012 ``` ## **`CRA 204/2009 OF I ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST - TRACK COURT I, THIRUVANANTHAPURAM SC 263/2004 OF ASSISTANT SESSIONS JUDGE, NEDUMANGAD`** ## **`REVISION PETITIONERS: APPELLANTS: ACCUSED 1 & 2`** ``` 1ASUMABEEVI D/O.HAJERBEEVI,VATTAVILAKATHU VEEDU,PONNAMBIKONAM,KOTTAKKAKOM MURI,VITHURAVILLAGE. ``` - `2 MOHANAN @ APPANEVETTY` - `S/O.LEKSHMANAN NADAR, VATTAVILAKATHU VEEDU, PONNAMBIKONAM, KOTTAKKAKOM MURI, VITHURA VILLAGE.` ``` BYADVSRI.M.SREEKUMAR ``` ## **`RESPONDENT: RESPONDENT: STATE:`** ``` STATEOFKERALA REPRESENTEDBYTHEPUBLIC PROSECUTOR,HIGHCOURTOFKERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SHRISRI.RENJITHGEORGE-SR.PUBLIC PROSECUTOR. ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARD ON28.10.2023,THECOURTON02.11.2023DELIVEREDTHEFOLLOWING: ``` Crl.R.P No.1394 of 2012 2 ## **O R D E R** This revision petition is at the instance of accused Nos.1 and 2 in SC No.263 of 2004 on the file of Assistant Sessions Judge, Nedumangad, assailing the judgment in Crl. Appeal No.204 of 2009, upholding their conviction under Section 58 of the Abkari Act, though the substantive sentence was reduced to certain extent. 2. The revision petitioners were charged under Sections 8(1) and 8(2) of the Abkari Act in Crime No.70 of 2002 of Vithura Police Station. The allegation against them was that, on 01.04.2002 at 5 p.m, they were found in possession of two five litre cans each containing 5 litres of arrack, at the pathway leading to River View estate. On seeing PW4-the detecting officer and police party, they entered the courtyard of a nearby house, and from there, they were intercepted and the contents in the cans were examined. PW4 and the police party found that, it was illicit liquor and so, they were arrested, and the cans containing illicit liquor were seized. After completing the legal formalities, the revision petitioners were produced before the jurisdictional Magistrate along with the records and articles. 3. On appearance of the revision petitioners before the trial Crl.R.P No.1394 of 2012 3 court, they pleaded not guilty to the charge and claimed to be tried. 4. Prosecution examined PWs 1 to 6 and marked Exts.P1 to P5 and identified M.O.1 and M.O.2 in order to prove their case. The revision petitioners were questioned under Section 313 Cr.P.C and they denied all the incriminating circumstances brought out in evidence. No defence evidence was adduced, and the trial court, after hearing both sides and on evaluating the facts and evidence, found the revision petitioners guilty under Section 58 of the Abkari Act, and sentenced each of them to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh each, and in default, each of them was directed to undergo simple imprisonment for a further period of three months. 5. Aggrieved by the conviction and sentence, they preferred Crl.Appeal No.204 of 2009, and the appellate court, on re-appraisal of the facts and evidence, upheld the conviction, but modified the substantive sentence of rigorous imprisonment for two years, and reduced it into rigorous imprisonment for one year, while retaining the fine amount and the default sentence. Aggrieved by the appellate court judgment, they preferred this revision petition. 6. Now this Court is called upon to verify the legality, propriety Crl.R.P No.1394 of 2012 4 and correctness of the decision taken by the appellate court. 7. Heard learned counsel for the revision petitioners and learned Public Prosecutor. 8. Learned counsel for the revision petitioners pointed out that, Ext.P4-forwarding note sent to the chemical laboratory, did not contain the specimen seal of the detecting officer, and it was not seen countersigned also. Moreover, the person who took the sample for chemical analysis is kept blank in the forwarding note. Ext.P4 is verified by this Court to check the veracity of the arguments made by the revision petitioners. It is true that the said document is not carrying the specimen seal of the detecting officer and it is not countersigned also. Moreover, the space for writing the name of the person who took the sample to the chemical examiner’s laboratory is kept blank in the forwarding note. 9. Learned counsel for the revision petitioners relied on the decision **Kumaran P. v. State of Kerala and another [2016 (5) KHC 632 : 2016 (4) KLT 718]** to say that, when the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, is remaining vacant in the forwarding note, the prosecution Crl.R.P No.1394 of 2012 5 has to examine the Thondy Clerk of the Court or Excise Guard concerned, to prove tamper proof despatch of the sample to the laboratory. Absence of such examination, enures to the benefit of the accused. Paragraph 7 of the judgment cited supra reads thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 02/08/2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put Crl.R.P No.1394 of 2012 6 the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the Court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution…”. 10. In the case on hand, PW5-the Property Section Clerk of the Magistrate Court, was examined to say that, he received the thondi article before the court and he took the sample, and sent it for chemical analysis. Ext.P3 property list shows that, the two five litre cans with its contents were produced before the Judicial First Class Magistrate Court-II, Nedumangad. PW5 has not stated the modalities adopted by him for taking the sample and for sealing the same. He has also not mentioned through whom that sample was sent to the chemical examiner’s lab. Moreover, the space for affixing the sample seal is kept blank. If the sample was taken at the court and it was Crl.R.P No.1394 of 2012 7 sealed with the seal of the court, it should have been affixed in the forwarding note also. But, that is also not seen. So, though the thondi clerk was examined by the prosecution, it did not serve the purpose. 11. Another contention taken by the learned counsel for the revision petitioners is that, no arrest memo was prepared by the detecting officer and so much so, the prosecution case regarding the arrest and seizure becomes doubtful. When the statute is a rigorous one, its provisions are to be strictly complied with and the chain of evidence should be complete to link the accused with the offences alleged. In the decision **Rangan v. State of Kerala [2023 KHC 2888: 2023(1) KLT 724]** , this Court held that, when the offences alleged against the accused are grave in nature and the sentence provided is harsh, strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest, is the requirement of law. It was a case in which the arrest memo of the accused was not prepared and the specimen seal used was not affixed in the seizure mahazar. 12. In the case on hand, the impression of the specimen seal was Crl.R.P No.1394 of 2012 8 not produced as an exhibit. In the forwarding note also, no specimen seal was affixed. So, learned counsel for the revision petitioners would contend that, there is nothing to show that, the sample of the contraband allegedly seized from the revision petitioners was the sample which reached the chemical examiner for analysis. They relied on the decision **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** , in which 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. In Ext.P5-chemical analysis report, it is reported that the seal on the bottle was intact and found tallied with the sample seal provided. But, in the forwarding note addressed to the chemical examiner, no sample seal was provided. So, though Ext.P5 report says that, the sample of liquid contained 35.85% by volume of ethyl alcohol, there is nothing to show that, the sample analysed was the very same sample taken from the contraband seized from the possession of the revision petitioners. 13. In **Krishnan H v. State [2015 (1) KHC 822]** , this Court Crl.R.P No.1394 of 2012 9 held that when no sample seal was made available to the chemical examiner for comparison, for ensuring that the sample of contraband allegedly seized from the accused reached the chemical examiner for analysis, there is no assurance that the chemical examiner examined the sample taken from the bulk allegedly seized from the accused. Paragraph 6 of the decision **Krishnan H [2015 (1) KHC 822]** reads thus: “6. Ext. P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in the sample and the sample of liquid contained 19.26% by volume of ethyl alcohol. It is also stated in Ext. P6 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the Court or the sample of the seal affixed on the sample bottle by PW 1? Ext. P5 is a copy of the Forwarding Note submitted before the Court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext. P5. Whether the sample seal was affixed on the original of Ext. P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext. P5, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the Court for serving certain purposes. The purposes are evident from the Crl.R.P No.1394 of 2012 10 contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution”. 14. The prosecution case is that, the revision petitioners were found together carrying five litre cans by each of them, and on seeing the police party, they entered into the courtyard of a nearby house and from there, they were arrested. The prosecution seems to have not made any enquiry as to the relationship, if any, between them. The 1[st] revision petitioner is a Muslim lady and the 2[nd] revision petitioner is a Hindu man as evident from their names, as well as from the name of their fathers. Since no relationship whatsoever has been shown between them, the prosecution case that, they were found together carrying five litre cans full of illicit arrack, casts some doubt regarding its genuineness. In addition, the non-preparation of the arrest memo at the scene of occurrence and also, the defects pointed out in the Crl.R.P No.1394 of 2012 11 forwarding note etc., casts serious doubt regarding the correctness of the prosecution case, and the revision petitioners are entitled to get the benefit of that doubt. 15. The courts below failed to appreciate the above facts in its correct perspective while convicting the revision petitioners under Section 58 of the Abkari Act. For the reasons aforesaid, the conviction and sentence under Section 58 of Abkari Act imposed on the revision petitioners cannot be sustained. In the result, the revision petition stands allowed, setting aside the conviction and sentence passed by the courts below, under Section 58 of the Abkari Act. Accordingly, the revision petitioners are found not guilty and they are acquitted under Section 235(1) of Cr.P.C. Their bail bonds are cancelled and they are set at liberty forthwith. Sd/- ## **SOPHY THOMAS JUDGE** smp