Indira v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 CRL.REV.PET NO. 2067 OF 2010`** ``` AGAINST THE ORDER/JUDGMENT CRA 529/2009 OF SESSIONS COURT, ``` ## **`PALAKKAD`** ``` SC 481/2007 OF ASSISTANT SESSIONS COURT, OTTAPPALAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` INDIRA AGED 34 YEARS, D/O RAJAN, CHEERAMKUZHI VEEDU, KAYILIYAD DESOM,, CHALAVARA VILLAGE, OTTAPALAM TALUK,, PALAKKAD DISTRICT. BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA ``` ``` EXCISE INSPECTOR, CHERPULASSERY EXCISE, RANGE, PALAKKAD DISTRICT, REP.BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA,E RNAKULAM. BY P.P., SRI. M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 2067 of 2010 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 2067 of 2010 ============================ Dated this the 17[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 481 of 2007 on the file of Asst. Sessions Judge, Ottapalam alleging commission of offences punishable under Sections 8(1) & (2) of the Abkari Act. 2. The prosecution allegation is that, on 24.02.2005 at about 2 p.m., at Kayiliyad in Chalavara Village, the accused was found in possession of five litres of illicit arrack and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 5 and Exts P1 to P9 were marked and identified MO1. From the side of the accused, Exts D1, D1(a) to D1(f) were marked. The trial Court found the accused guilty and convicted her to undergo rigorous 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 imprisonment for a further period of three 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 Crl.R.P. No. 2067 of 2010 :3: No.529 of 2009 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. In Ext P1 mahazar, no specimen seal is affixed nor the description of the seal affixed in the samples is seen mentioned. The learned Counsel for the revision petitioner would further contend that though the occurrence and seizure was on 24.02.2005, the seized properties were produced before the Court only on 28.02.2005 and there is four days of unexplained delay which is fatal to the case of the prosecution. The learned Public Prosecutor on the basis of the evidence of PW4 submits that in fact the alleged contraband was produced before the Court on 25.02.2005 and there are materials to substantiate the same. But no evidence has been produced by the prosecution to show that the alleged contraband was produced before the Court on 25.02.2005. Moreover in Ext P1 mahazar, Ext P2 crime and occurrence report and Ext P3 property list show that the same was received on 28.02.2005 as evident from the seal affixed by the Court which bears the date 28.02.2005. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not Crl.R.P. No. 2067 of 2010 :4: 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 considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The first contention raised is that in Ext P1 mahazar, no specimen seal is affixed nor the description of the seal affixed in the samples is mentioned. 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 Crl.R.P. No. 2067 of 2010 :5: 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 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 Crl.R.P. No. 2067 of 2010 :6: 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 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. Another contention raised by the learned Counsel for the revision petitioner is that though the occurrence and seizure was on 24.02.2005, the seized properties were produced before the Court only on 28.02.2005 and there is four Crl.R.P. No. 2067 of 2010 :7: days of unexplained delay which is fatal to the case of the prosecution. Though the learned Public Prosecutor on the basis of the evidence of PW4 would submit that in fact the alleged contraband was produced before the Court on 25.02.2005 and there are materials to substantiate the same, no evidence has been produced by the prosecution to show that the alleged contraband was produced before the Court on 25.02.2005. Moreover, it is to be seen that in Ext P1 mahazar, Ext P2 crime and occurrence report and Ext P3 property list would show that the same was received only on 28.02.2005, as is evident from the seal affixed by the Court which bears the date 28.02.2005. This court in **Ramachandran v. State of Kerala (2021 (1) KLT 793** has held that unexplained delay in producing the contraband and sample before the court 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. Hence, I am of the opinion that the unexplained inordinate delay is fatal to the case of the prosecution. 9. The above vital aspects were not considered by the Crl.R.P. No. 2067 of 2010 :8: 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 her. The bail bond shall stand cancelled and she 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/-