James, S/O Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 17[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945** **CRL.REV.PET NO. 3184 OF 2010** **AGAINST THE JUDGMENT IN CRA 62/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA SC 162/2001 OF ASSISTANT SESSIONS COURT, SULTHANBATHERY** ## **REVISION PETITIONER/APPELLANT NO.1/ACCUSED NO.1:** JAMES, S/O.THOMAS, PUTHENPURAYIL HOUSE,MANOORKOLLI,, AMBALAMOOLA, TAMILANADU. BY ADV SRI.MATHEW KURIAKOSE ## **RESPONDENT:** STATE OF KERALA CRIME NO.60/2000 OF S.BATHERY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI.SINU.G.NATH PUBLIC PROSECUTOR RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Crl.R.P.No.3184 of 2010 2** ## **VIJU ABRAHAM,J** **-----------------------** ## **Crl.R.P.No.3184 of 2010 ------------------------------------Dated this the 17[th] day of October, 2023** ## **ORDER** The revision petitioner is the 1[st] accused in SC No. 162 of 2001 on the file of the Assistant Sessions Judge, Sulthanbathery alleging the commission of offence punishable under Section 55(A) of the Abkari Act. 2. The prosecution case is that on 05.02.2000 at 17 hours, accused Nos.1 and 2 were found illegally transporting 450 litres of spirit from Karnataka at Dhottappankulam under the instruction of accused Nos.3 and 4 in Tata Sumo vehicle No.KL-7/R-3198 and thus committed the offence punishable under Section 55(A) of the Abkari Act. 3. The case against the 4th accused was split as he was absconding and the case against him was numbered as C.P. No. 60 of 2001. On the side of the prosecution, PWs.1 to 5 and DW1 were examined and Exts.P1 to P15 were marked and MO1 to MO6 series were identified. ## **Crl.R.P.No.3184 of 2010 3** 4. The trial court on consideration of the evidence adduced found that the accused Nos.1 and 2 were guilty of the charges levelled against them and they were convicted and sentenced to undergo rigorous imprisonment for 3 years each and to pay a fine of Rs.1,00,000/ each and in default of payment of fine, to undergo simple imprisonment for six months and the 3rd accused was found not guilty and was acquitted under Section 235 CrPC. 5. An appeal preferred by the 1[st] accused/revision petitioner along with the 2nd accused as Crl. Appeal No.62 of 2007 and the same was dismissed by the appellate court as against the 1st accused/revision petitioner but the conviction of the 2nd accused was interfered and set aside. Aggrieved by the said conviction and sentence, this Crl.Revision Petition is filed. 6. The learned counsel appearing for the revision petitioner raised the following contentions: In Ext P3 seizure mahazar no specimen seal is affixed, nor the description or nature of the seal affixed on the sample ## **Crl.R.P.No.3184 of 2010 4** is stated therein. Further contention raised by the petitioner is that though the property alleged to have been seized on 5.2.2000 and the property along with Ext.P6 property list was produced before the court only on 8.2.2000 and the said delay is not properly explained. Yet another contention raised is that though the contraband was produced before the court, request to forward the same for chemical analysis was made only on 17.02.2000 and the same was forwarded only on 25.02.2000 and there is no evidence regarding safe custody of the sample during the said period. 7. 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 ## **Crl.R.P.No.3184 of 2010 5** 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. 8. First contention raised is that in Ext P3 seizure mahazar no specimen seal is affixed, nor the description or nature of the seal affixed on the sample is stated 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. In this case, no specimen seal is seen affixed in the seizure mahazar. 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 ## **Crl.R.P.No.3184 of 2010 6** 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 ## **Crl.R.P.No.3184 of 2010 7** 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 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 ## **Crl.R.P.No.3184 of 2010 8** the benefit of doubt. 9. The second contention raised by the learned counsel for the revision petitioner is that though the property alleged to have been seized on 5.2.2000 and the property along with Ext.P6 property list was produced before the court only on 8.2.2000 and the said delay is not properly explained. The explanation given by PW2 is that the accused were produced before the Judicial First Class Magistrate Court-I along with the remand report, but that day being a Sunday, the property was kept in safe custody and produced on 8.2.2000. The occurrence was on 5.2.2000, but the property could not be produced on that day going by the evidence of PW2 as that day was Sunday, but the delay till 8.2.2000 for producing the alleged contraband before the court is not seen explained. 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 ## **Crl.R.P.No.3184 of 2010 9** 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 **Vikraman v. State of Kerala 2018 KHC 3177)** it was held that when there is no proper explanation for the delay, the possibility of tampering with the properties during the said period cannot be ruled out. Therefore, I am of the opinion that there is no sufficient explanation for the delay in production of the alleged contraband before the court till 08.02.2000 though the alleged seizure was on 05.02.2000. 10. The third contention raised is that though the contraband was produced before the court, request to forward the same for chemical analysis was made only on 17.02.2000 and the same was forwarded only on 25.02.2000 and there is no evidence regarding safe custody of the sample during the said period. In **Krishnadas v. State of Kerala, 2019 KHC 191,** this court has held that the unexplained delay between sending the sample for chemical examination and the date on which ## **Crl.R.P.No.3184 of 2010 10** the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. This court in **Vijayan’s** case cited supra 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 thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. Since the same has not been explained by examining the thondy clerk, I am of the opinion that the same is fatal to the case of the prosecution. 11. The above vital aspects were not considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the courts below cannot be sustained. In the result, the above revision petition stands allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/1st accused and he is acquitted of the ## **Crl.R.P.No.3184 of 2010 11** charges The bail bond of the revision petitioner/1st accused shall stand cancelled. He is set at liberty forthwith. Needless to say, if the revision petitioner/1st 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** pm