Damu v. State of Kerala

**Crl.R.P.No.2304 of 2005 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945** **CRL.REV.PET NO. 2304 OF 2005** **(AGAINST THE JUDGMENT IN CRA 597/2001 DATED 30.05.2005 PASSED BY THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC)-II, KOZHIKODE AND IN SC 242/1999 DATED 29.10.2001 PASSED BY THE COURT OF SESSION, KOZHIKODE DIVISION)** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** DAMU, AGED 51 YEARS, SREEPURAM HOUSE, VILLIAPALLY AMSOM, THIRUMANA DESOM, VATAKARA TALUK. BY ADV SRI.SUNNY MATHEW ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, EDACHERY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR RENJITH GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.R.P.No.2304 of 2005 2** ## **VIJU ABRAHAM,J** ## **----------------------Crl.R.P.No.2304 of 2005** ## **------------------------------------Dated this the 25[th] day of September, 2023** ## **ORDER** The revision petitioner is the accused in Crime No.211 of 1998 of Edachery Police Station alleging commission of offence punishable under Section 55(a) of the Abkari Act r/w Rule 9 of the Foreign Liquor Rules and Section 15 of the Abkari Amendment Act 1997. 2. The prosecution case is that on 28.08.1998 at 7.05. a.m., while CW1 and the Police party were engaged in Abkari checking duty on the National Highway just in front of the Cashew nut Factory in Azhiyoor amsom desom, the accused was found coming along the said road with Indian Made Foreign Liquor and the accused had in his possession 5 bottles of 375 Ml capacity each containing Indian Made Foreign Liquor by name Extra No.1 Golden Star Brandy and 5 bottles of 375 Ml capacity each containing IMFL by name Aristocrat Brandy. The accused thereby committed the aforesaid offences. ## **Crl.R.P.No.2304 of 2005 3** 3. On the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to P8 and MO1 and MO2 series were marked. 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo simple imprisonment for two years and also to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months. 5. An appeal preferred by the revision petitioner as Crl. Appeal No.597 of 2001 was partly allowed. The conviction against the appellant u/S.55(a) of the Abkari Act r/w Rule 9 of the Foreign Liquor Rule was confirmed. But the sentence passed by the lower court was modified and the appellant was sentenced to undergo simple imprisonment for a period of one year and imposed a fine of Rs.1 lakh and in default of payment of fine to undergo simple imprisonment for 3 months. It is aggrieved by the said conviction and ## **Crl.R.P.No.2304 of 2005 4** sentence, this Crl.Revision Petition is filed. 6. The petitioner raised various contentions assailing the order of conviction and sentence imposed by the Court below. The primary contention raised is that there is an unexplained delay of 22 days in producing the articles before the court. A perusal of Ext.P6 property list would reveal that the same was received in the court only on 02.09.1998. Secondly, it was contended that in Ext P3 seizure mahazar, no specimen seal has been affixed. It is also contended that in Ext P7 forwarding note, the person through whom the sample was forwarded to the chemical analysis laboratory is not mentioned and his name is also absent in Ext.P8 chemical analysis report. **==> picture [390 x 12] intentionally omitted <==** 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 ## **Crl.R.P.No.2304 of 2005 5** 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 _**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. The first contention raised by the petitioner is that there is unexplained delay in producing the alleged contraband before the court. The seal affixed on Ext.P6 property list would reveal that though the occurrence was on 28.08.1998, the property was produced before the court only on 02.09.1999 _**.**_ In _**Ramachandran v. State**_ _**of Kerala (2021 (1) KLT 793**_ this Court 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 ## **Crl.R.P.No.2304 of 2005 6** contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. 9. Another contention raised by the petitioner is that in Ext.P3 seizure mahazar, no specimen seal has been affixed. 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. In _**Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 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. A similar view was taken by this court in ## **Crl.R.P.No.2304 of 2005 7** ## _**Moothedath Sivadasan v. State of Kerala, 2021 (1)**_ _**KLT 744**_ **.** In view of the above, I am of the opinion that the said lacuna is fatal to the prosecution case. 10. Yet another contention raised by the petitioner is that in Ext.P7 forwarding note the officer through whom the sample was sent to the chemical examiner is not seen mentioned. The name is not mentioned in Ext.P8 chemical analysis report also. In view of the same, the prosecution ought to have adduced evidence by examining the person through whom the sample was sent for chemical examination, which has not been done in the present case. 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 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 ## **Crl.R.P.No.2304 of 2005 8** 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. Especially in view of the fact that the name of the official through whom the alleged contraband was sent to the chemical analysis laboratory is not mentioned in Ext P7 forwarding note and also in Ext P8 chemical analysis report. In view of the said 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, it has to be held that the prosecution has failed to prove the case beyond reasonable doubt. 11. The above vital aspects were not considered by the courts below while appreciating the ## **Crl.R.P.No.2304 of 2005 9** evidence. In the said circumstance, the conviction and sentence passed by the courts below cannot be sustained. In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and he is acquitted of the charges levelled against him. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith. sd/- **VIJU ABRAHAM, JUDGE** pm