Haridasan Kandamangalath Veli v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 CRL.REV.PET NO. 1692 OF 2009** **AGAINST THE ORDER/JUDGMENT CRA 80/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)- I, ALAPPUZHA** **SC 554/2001 OF SUB COURT, CHERTHALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** HARIDASAN KANDAMANGALATH VELI, WARD NO.5,, CHERTHALA SOUTH PANCHAYATH. BY ADV SRI.C.K.SAJEEV ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP – SRI.RENJIT GEORGE **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.1692 of 2009 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.1692 of 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 554 of 2001 on the file of Assistant Sessions Court, Cherthala, alleging commission of offences punishable under Sections 55(a) and 8(1) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 04.05.1999, the revision petitioner/accused was found carrying 2.5 litres of arrack in a can of 5 litres capacity on the public road at the western side of the Eco Wood Factory in Cherthala South Panchayat and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 3 and Exts. P1 to P5 were marked and MO1 was identified. The trial Court found the accused guilty and convicted him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple :3: CRL. R.P. No.1692 of 2009 imprisonment for a further period of two months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.80 of 2006 before the Additional Sessions Judge(Fast Track-I), Alappuzha, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned counsel for the revision petitioner raised the contention that in Ext.P1 mahazar, no specimen seal is seen affixed nor the description of the seal affixed on the sample bottle is stated therein. Yet another contention raised by the revision petitioner is that forwarding note is not marked to prove 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 :4: CRL. R.P. No.1692 of 2009 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 considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The learned counsel for the revision petitioner contended that in Ext.P1 mahazar, no specimen seal is seen affixed nor the description of the seal affixed on the sample bottle is stated therein. Yet another contention raised by the revision petitioner is that the forwarding note is not marked to prove the case of the prosecution. Based on the same, it is the contention of the learned counsel that the prosecution failed to prove the case against the accused. 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 :5: CRL. R.P. No.1692 of 2009 reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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 the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. In _**Nadarajan v. State of Kerala [2020 (3) KLT OnLine 1030]** ,_ it is held that when the specimen seal is not affixed on the CRL. R.P. No.1692 of 2009 :6: seizure mahazar and in the forwarding note (in the present case no forwarding note is produced and marked), 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 _**Gopalan v. State of Kerala** , [_ _**2016 (3) KLT SN 24]**_ **,** _**Prakasan v. State of Kerala [2016 (1) KLT SN 89 (C.No.96)], Joseph v. State of Kerala [2009 (4) KHC 537], Ajayakumar v. State of Kerala [2021 KHC 3872], Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Faijas v. State of Kerala [2020 KHC 5259]**_ and _**Ramachandran v. State of Kerala [2021 (1) KLT 739]**_ **.** This court in _**Moothedath Sivadasan v. State of Kerala, [2021 (1) KLT 744]**_ has 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**_ CRL. R.P. No.1692 of 2009 :7: _**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 has held that mere production of a laboratory _**Vijay Pandey v. State of U.P. [AIR 2019 SC 3569]**_ 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 CRL. R.P. No.1692 of 2009 :8: circumstances, the revision petitioner is entitled to the benefit of doubt. 8. 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** sm/