DAS S/O VASU v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** **Crl.Rev.Pet.No.272 OF 2012** **AGAINST THE JUDGMENT, CONVICTION AND SENTENCE DATED 25-11-2011 IN CRL.APPEAL NO.190/2010 OF THE 4TH ADDL.SESSIONS JUDGE (ADHOC)-II, THODUPUZHA, ADN THE JUDGMENT, CONVICTION ADN SENTENCE DATED 12-03-2010 IN SC 500/2007 ON THE FILE OF THE ASSISTANT SESSIONS JUDGE, KATTAPPANA.** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **DAS S/O.VASU, PALAKUNNEL HOUSE, BALANPILLAI CITY KARA, KARUNAPURAM VILLAGE.** **BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02.06.2020, THE COURT ON 05.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.272/2012 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.272 of 2012 -----------------------------------------Dated this the 5[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.500/2007 on the file of the Court of the Assistant Sessions Judge, Kattappana. 2. The prosecution case is that, on 19.05.2005, at about 21:45 hours, at a public road at the place Chettupara, PW1 Sub Inspector found the petitioner having in his possession a can containing 3.500 litres of arrack. 3. The trial court framed charge against the petitioner for the offence under Section 8(1) read with 8(2) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P7 documents and MO1 and MO2 material objects. No Crl.R.P.No.272/2012 3 evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of two months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. 6. The petitioner filed Crl.A.No.190/2010 before the Court of Session, Thodupuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty and conviction recorded against him and the sentence imposed on him by the courts below are challenged by the accused in this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. Crl.R.P.No.272/2012 4 9. PW1 is the Sub Inspector who detected the offence. PW3 is the police constable who was in the police party led by PW1. PW1 and PW3 have given evidence regarding the occurrence in detail. 10. PW4 is the independent witness examined by the prosecution to prove the occurrence. He denied having seen the incident. He even denied the signature in Ext.P2 seizure mahazar. 11. Ext.P6 is the chemical examination report in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 34.94% by volume of ethyl alcohol. 12. Learned counsel for the petitioner has challenged the conviction against the petitioner on the following grounds: (1) The evidence of PW1 and PW3, the police officials, regarding the seizure of MO1 can containing arrack from the possession of the petitioner cannot be accepted as reliable and trustworthy. (2) The evidence adduced by the prosecution is not sufficient to find that the very same sample of liquid taken at the spot of the Crl.R.P.No.272/2012 5 occurrence was sent for analysis and tested in the laboratory and therefore, Ext.P6 chemical examination report cannot be accepted as the basis for recording conviction against the petitioner. 13. PW1 Sub Inspector has given evidence that, on 19.05.2005, while he was conducting patrol duty with police party, and when he reached the place Chettupara, he saw the accused standing at the road with a can and a glass in his hand. PW1 has also given evidence that he obstructed the accused and examined the contents of the can by tasting and smelling it and he was satisfied that the liquid contained in the can was arrack. PW1 has also stated that he took sample of liquid from the can in a bottle and sealed the sample bottle and affixed label, bearing his signature and the signature of the witnesses, on it and he seized the materials as per Ext.P2 mahazar. PW3 has also given evidence more or less to the same effect. 14. Ext.P4 is the property list prepared by PW1 for producing the material objects before the court. The description of the can given in Ext.P4 property list shows that there was seal Crl.R.P.No.272/2012 6 on it. However, there is no recital in Ext.P2 seizure mahazar that any seal was affixed on the can containing the residue. PW1 has also not given any evidence that he sealed the can containing the residue. It indicates that the can was sealed at the police station before producing it in the court. 15. Ext.P2 seizure mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, and Ext.P3 first information report contain a recital that the sample bottle was sealed and labelled by PW1. The description of the sample bottle given in Ext.P4 property list does not show that there was any label on it. However, the evidence of PW1 is that he affixed label, bearing his signature and the signature of the witnesses, on the sample bottle. If that be so, it cannot be found that the sample produced before the court as per Ext.P4 property list was the very same sample which was allegedly drawn at the spot of the occurrence. 16. Ext.P5 is the copy of the forwarding note prepared by PW1 for sending the sample for chemical analysis. The description of the sample bottle given in Ext.P5 forwarding note Crl.R.P.No.272/2012 7 does not show that there was any label on it. This also creates suspicion as to whether the very same sample which was allegedly drawn at the spot of the occurrence was forwarded to the laboratory for analysis as per Ext.P5 forwarding note. 17. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related"._ 18. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to Crl.R.P.No.272/2012 8 prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 19. The above mentioned vital aspects have not been considered by the courts below while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the courts below, cannot be sustained. The petitioner/accused is entitled to be acquitted. 20. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the courts below for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and Crl.R.P.No.272/2012 9 he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True copy PS to Judge