George s/o Joseph Kodakattu House Pathiriyambam Nadavayal Sulthan Bathery Wayanad District v. State of Kerala (Excise Range Officer, Sulthan Bathery) represented by Public Prosecutor, High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 11[TH] DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CRL.REV.PET NO. 2792 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 82/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA ``` ``` SC 210/2000 OF SUB COURT / COMMERCIAL COURT (KALPETTA), ``` ## **`SULTHANBATHERY`** ## **`REVISION PETITIONER:`** ``` GEORGE S/O.JOSEPH, KODAKATTU HOUSE,, PATHIRIYAMBAM, NADAVAYAL, SULTHAN BATHERY,, WYANAD DISTRICT. BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA (EXCISE RANGE OFFICER, SULTHAN BATHERY),, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY P.P., SRI. RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 2792 of 2010 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 2792 of 2010 ============================ Dated this the 11[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 210 of 2000 on the file of Asst. Sessions Judge, Sulthan Bathery registered alleging commission of offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that, on 23.03.1999 at about 6 pm, while PW1 and his party were on an Abkari raid, found the accused in possession of 20 packets each with 100 ml capacity of Karnataka made arrack in the packet and thereby the accused has committed the alleged offence. 3. The prosecution in support of their case examined PWs 1 to 5 and Exts P1 to P7 were marked and MO1 to MO3 were identified. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months. 4. Aggrieved by the conviction and sentence imposed Crl.R.P. No. 2792 of 2010 :3: by the trial Court, an appeal was preferred as Crl.Appeal No.82 of 2006 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned Counsel appearing for the revision petitioner raised the following contentions. Learned counsel with reference to Ext P1 seizure mahazar would submit that no specimen seal is seen affixed nor the description of the seal affixed on the samples is mentioned in Ext P1. He raised a further contention that the occurrence was on 23.03.1999 and a perusal of Ext P5 property list would reveal that the seized contraband articles were produced before the Court on 29.03.1999. The only explanation given by PW5 is that due to work pressure, the alleged contraband seized could not be produced before the Court. Further contention taken by the learned Counsel for the revision petitioner is regarding the unexplained delay in completing the investigation. The occurrence was on 23.03.1999 and the chemical analysis report was ready on 20.07.1999, but a complaint was filed only on 21.06.2000. i.e. almost one year after the receipt of the chemical analysis report. The further contention raised is regarding the delay in preparation of Ext P3 scene mahazar. A perusal of Ext P7 chemical analysis report would reveal that it Crl.R.P. No. 2792 of 2010 :4: does not contain the date on which the sample was received. A perusal of Ext P6 would show that the samples were produced along with the forwarding note before the jurisdictional Court on 29.03.1999. The same is seen despatched only on 04.06.1999. The property clerk or the person through which the alleged sample was sent for chemical examination was not examined to prove the safe custody of the samples from the period between 29.03.1999 and 04.06.1999. The said aspect is also fatal to the case of the prosecution. 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, 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 Crl.R.P. No. 2792 of 2010 :5: considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The first contention raised by the learned counsel for the revision petitioner is that in Ext P1 seizure mahazar no specimen seal is seen affixed nor the description of the seal affixed on the samples 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 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 Crl.R.P. No. 2792 of 2010 :6: 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 Crl.R.P. No. 2792 of 2010 :7: 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. 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. 8. Further contention raised is that the occurrence was on 23.03.1999 and a perusal of Ext P5 property list would reveal that the seized contraband articles were produced before the Court on 29.03.1999. The only explanation given by PW5 is that due to work pressure, the alleged contraband seized could not be produced before the Court. I find that the said explanation is not satisfactory and he has not explained regarding the safe custody of the contraband till the same was produced before the Court. 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 Crl.R.P. No. 2792 of 2010 :8: 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 taken by the learned Counsel for the revision petitioner is regarding the unexplained delay in completing the investigation. The occurrence was on 23.03.1999 and the chemical analysis report was ready on 20.07.1999, but a complaint was filed only on 21.06.2000. i.e. almost one year after the receipt of the chemical analysis report. 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)** , _**Surendran and Another v. State of Kerala 2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4) KLT 718**_ 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_ Crl.R.P. No. 2792 of 2010 :9: _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) 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_ Crl.R.P. No. 2792 of 2010 :10: _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_ .” ## In **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ Crl.R.P. No. 2792 of 2010 :11: 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 next contention raised is regarding the delay in preparation of Ext P3 scene mahazar. Though the occurrence was on 23.03.1999, Ext P3 scene mahazar was prepared only on 15.07.1999. A perusal of Ext P3 would reveal that the scene mahazar was prepared after identifying the place of occurrence by enquiring with the nearby residents and further that none of the person in the detecting team were present at the time of preparation of the scene mahazar and therefore the preparation of the scene mahazar after a considerable delay cannot be said to be conclusive. 11. It is also contended that a perusal of Ext P7 chemical analysis report would reveal that it does not contain the date on which the sample was received. A perusal of Ext P6 would show that the samples were produced along with the forwarding note before the jurisdictional Court on 29.03.1999. The same is seen despatched only on 04.06.1999. The property clerk or the person through which the alleged sample Crl.R.P. No. 2792 of 2010 :12: was sent for chemical examination was not examined to prove the safe custody of the samples from the period between 29.03.1999 and 04.06.1999. The said aspect is also fatal to the case of the prosecution. This court in **Jayakumar v. State of Kerala, 2018 (1) KLT SN 65** and **Gnanaprakasham v. State of Kerala, 2021 (4) KLT OnLine 1089** has held that evidence regarding the date on which the learned Magistrate sent the sample to the laboratory and the date on which the Excise Guard referred to in the forwarding note received the sample from the court is very vital while looking for assurance regarding the question whether the very same sample allegedly drawn at the scene of occurrence reached the hands of the Analyst in a tamper proof condition. In such circumstances, the prosecution ought to have examined the thondi clerk of the court or the guard who had taken the sample to the analyst so as to prove the tamper-proof despatch of the sample to the laboratory. 12. 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. Crl.R.P. No. 2792 of 2010 :13: 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** sbk/-