Divakaran v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 ``` ## **`CRL.REV.PET NO. 1596 OF 2010`** ``` AGAINST THE JUDGMENT IN CRA NO.54/2010 OF III ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA S.C. NO.309/2008 OF ASSISTANT SESSIONS COURT, THODUPUZHA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` DIVAKARAN, S/O.GOVINDAN, THRUKKEKKARAKUNNEL HOUSE, PANICKANKUDI KARA, KONNATHADY VILLAGE. ``` ``` BY ADV PRAMOY K.KOTTARAM ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA – THE EXCISE INSPECTOR UDUMBANCHOLA, REP.BY THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY PP SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P.No.1596 of 2010 2 ## **VIJU ABRAHAM,J** **.............................................. Crl.R.P.No.1596 of 2010 .............................................. Dated this the 6[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in S.C.No.309 of 2008 on the file of the Assistant Sessions Court, Thodupuzha registered alleging commission of offences punishable under Section 8(1) read with Section 8(2) of the Kerala Abkari Act. 2. The prosecution case is that on 28.01.2003 at about 6.00 p.m., the accused was found in possession of about 10 litres of arrack in a plastic can in his property and thereby the revision petitioner/accused has committed the alleged offences. 3. The prosecution in support of their case examined PW1 to PW8 and marked Exts.P1 to P10 and identified MO1. 4 **.** The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months **.** It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. Though an appeal was preferred as Crl.Appeal No.54 of 2010 before the III Additional Sessions Court (Adhoc-I), Thodupuzha, the same was dismissed confirming the conviction and sentence Crl.R.P.No.1596 of 2010 3 imposed by the trial court. 5. Learned counsel appearing for the revision petitioner has raised the following contentions. Though the occurrence and seizure were on 28.01.2003, the contraband was produced before the court on 31.03.2003 as is evident from Ext.P7 property list. A perusal of the seal affixed by the jurisdictional Magistrate on Ext P7 property list would reveal that the property list along with the contraband was received in the court only on 31.03.2003. It is also submitted that PW2 and PW3 who are independent witnesses to prove the seizure turned hostile. Petitioner would contend that there is no specimen seal affixed on the mahazar and not even the description of the seal affixed is seen mentioned therein. Petitioner would further contend that though the occurrence was on 28.01.2003 and Ext.P9 chemical analysis report was ready on 07.09.2004, the complaint was filed only on 12.12.2006. There is an unexplained delay of almost three years in filing the final report which is fatal to the prosecution case, especially in view of Section 50 of the Abkari Act. 6. Though it is true that the scope of 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 harsh sentence provided, Crl.R.P.No.1596 of 2010 4 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. 7. Let me consider the first contention raised by the learned counsel for the revision petitioner. It is contended that though the occurrence and seizure were on 28.01.2003, the contraband was produced before the court on 31.03.2003 as is evident from Ext.P7 property list. On a perusal of the evidence of PW4 I find that there is no proper explanation for the delay and the safe custody of the seized articles. This court in **Ramachandran v. State of Kerala (2021 (1) KLT 793** 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 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. In **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** this court has held in paragraph 11 as follows: _“11. It is also to be noted that even though the contraband article was seized on 7.1.2006, the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had_ Crl.R.P.No.1596 of 2010 5 _been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is only for one day, particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence regarding the safe custody of the sample till its production before the court.”_ In view of the above, I find considerable force in the contention raised by the learned counsel for the revision petitioner. 8. Further contention raised by the petitioner is that there is no seal affixed on the mahazar and not even the description of the seal affixed in the sample is mentioned therein. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering.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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the Crl.R.P.No.1596 of 2010 6 mahazar. 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 **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** and held that since no specimen impression of seal is seen affixed in the seizure mahazar 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. 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 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 Crl.R.P.No.1596 of 2010 7 was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. In view of the 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, the revision petitioner is entitled to the benefit of doubt. 9. Yet another contention raised by the learned counsel for the revision petitioner is that though the occurrence was on 28.01.2003 and Ext.P9 chemical analysis report was ready on 07.09.2004, the complaint was filed only on 12.12.2006. There is an unexplained delay of almost three years in filing the final report which is fatal to the prosecution case, especially in view of Section 50 of the Abkari Act. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2)_ Crl.R.P.No.1596 of 2010 8 _KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” Crl.R.P.No.1596 of 2010 9 In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 10. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM JUDGE** cks