Johnson, S/O Enose v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 ``` ## **`CRL.REV.PET NO. 1029 OF 2012`** ``` AGAINST THE JUDGMENT IN CRA 681/2009 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-IV, THIRUVANANTHAPURAM SC 1206/2004 OF ASSISTANT SESSIONS COURT,NEYYATTINKARA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` JOHNSON, S/O.ENOSE, CHETTAKADAVILA PUTHEN VEEDU, KARODE DESOM, VILAPPIL VILLAGE, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682031. ``` ## **`OTHER PRESENT:`** ``` PP - M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.1029 of 2012 2 ## **VIJU ABRAHAM, J** **.............................................. Crl.R.P.No.1029 of 2012 .............................................. Dated this the 9[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in S.C.No.1206 of 2004 on the file of the Assistant Sessions Court, Neyyattinkara registered alleging commission of offences punishable under Sections 8(1) and 8(2) of the Kerala Abkari Act. 2. The prosecution case is that on 09.07.2001 at 12.30 p.m., the accused was found in possession of about 3 litres of arrack in a can in Undappara-Mannamkonam public road near Plamkonam culvert and thereby the revision petitioner/accused has committed the alleged offences. 3. The prosecution in support of their case examined PW1 to PW6 and marked Exts.P1 to P5 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 simple imprisonment for 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 **.** 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.681 of 2009 before the Additional Sessions Court, Fast Track (Adhoc) No.IV, Crl.RP No.1029 of 2012 3 Thiruvananthapuram, the same was disposed of confirming the conviction and modifying the sentence imposed by the trial court as six months simple imprisonment and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. 5. Learned counsel appearing for the revision petitioner has raised the following contentions. The primary contention taken is that no sample was collected on the spot and a perusal of Ext.P1 mahazar would reveal that the specimen seal affixed on the contraband seized is not affixed on the seizure mahazar nor the description of the nature of the seal affixed on the can containing the contraband is also not mentioned in the seizure mahazar. Further, a perusal of Ext.P5 forwarding note would reveal that no specimen seal is seen affixed in the forwarding note, which is also fatal to the prosecution case. Yet another contention taken is that a perusal of Ext.P5 forwarding note would reveal that the request was made by the Excise Inspector to send the material objects through Excise Guard B.Chandramohan, whereas, in the chemical analysis report, the sample reached the chemical analysis laboratory through one Excise Guard Vijayakumaran. It is also contended that there is a delay in sending the sample for chemical examination and no explanation is also offered for the delay. Yet another contention raised by the petitioner is that sample was taken from the court through PW6, thondi clerk and the said procedure adopted by the court is illegal and to substantiate the said contention, the Crl.RP No.1029 of 2012 4 petitioner relies on the judgment in **Baburaj v. State of Kerala, 2021 (6) KLT 416** . 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 considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. Let me consider the contentions raised by the learned counsel for the revision petitioner. It is contended that no sample was collected on the spot and a perusal of Ext.P1 mahazar would reveal that the specimen seal affixed on the contraband seized is not affixed on the seizure mahazar nor the description of the nature of the seal affixed on the can containing the contraband is also not mentioned therein and that a perusal of Ext.P5 forwarding note would reveal that no specimen seal is seen affixed in the forwarding note, which is also fatal to the prosecution case. The purpose Crl.RP No.1029 of 2012 5 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. 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 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 Crl.RP No.1029 of 2012 6 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),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** The same 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 was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. A similar view was taken by this court in **Udayan v. State of** Crl.RP No.1029 of 2012 7 **Kerala, 2023 (1) KLT 371.** 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 petitioner is that a perusal of Ext.P5 forwarding note would reveal that the request was made by the Excise Inspector to send the material objects through Excise Guard B.Chandramohan, whereas in the chemical analysis report, the sample reached the chemical analysis laboratory through one Excise Guard, Vijayakumaran. The change that has happened is not seen explained by adducing evidence. These are suspicious circumstances when left unexplained, will go in favour of the accused. 9. Yet another contention raised is that the samples were taken in the court by PW6 thondi clerk which is a clear case of procedure violation. The evidence of PW6 who is the property clerk attached to the Judicial First Class Magistrate Court, Kattakkada would reveal that the sample was taken by the property clerk as directed by the jurisdictional Magistrate. This court in **Baburaj’** s case cited supra has held that drawing the samples and sealing the same are acts within the exclusive province of the police official or the excise official concerned and the magistrate is not empowered to draw samples from the contraband produced before him by the detecting officer and the said act of drawing samples by the Crl.RP No.1029 of 2012 8 court will go against the prosecution case. A similar view was taken in **Smithesh v. State of Kerala, 2019 (2) KLT 974** . 10. It is further contended that there is a delay in sending samples from the court to the chemical analysis laboratory for examination. Going by the evidence of PW6, the sample was taken on 09.07.2001 but the same was sent for chemical examination only on 14.09.2001. No explanation has been offered either by PW6 or any of the official witnesses regarding the delay in forwarding the same. The unexplained delay is fatal to the prosecution case. 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 the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. 11. 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 Crl.RP No.1029 of 2012 9 or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/-** **VIJU ABRAHAM JUDGE** cks