K. Balachandran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 CRL.REV.PET NO. 48 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT SC 290/2010 OF ASSISTANT SESSIONS ``` ## **`COURT, KASARAGOD`** ``` CRL.A NO.57/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD / III ADDITIONAL MACT, KASARAGODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` K.BALACHANDRAN AGED 53 YEARS S/O.C.KUNHAMBU NAIR, OOVADY DESOM, MUNNAD VILLAGE, KASARAGOD DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. ``` ``` BY PP - RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME BEEN FINALLY HEARD ON 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 48 of 2014 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 48 of 2014 ============================ Dated this the 29[th] day of September, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 290 of 2010 on the file of the Assistant Sessions Judge, Kasaragod alleging the commission of offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that, on 31.07.2008 at about 1.30 pm, the accused was found transiting five litres of illicit arrack in a plastic can at Oovadi, Kasaragod Taluk, in contravention of the provisions of the Abkari Act and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 4 and Exts P1 to P10 were marked. The trial Court found the accused guilty and convicted him to undergo simple imprisonment for a period of four 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. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed Crl.R.P. No. 48 of 2014 :3: by the trial Court, an appeal was preferred as Crl.Appeal No.57 of 2012 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 following contentions. He relying on Ext P3 seizure mahazar submits that it does not contain the specimen seal and there is no description of the seal which has been affixed on the samples. The learned Counsel for the petitioner would further contend that though the alleged contraband and samples were produced before the Court on 31.07.2008 as is evident from Ext P5 property list, the sample was sent to the Forensic Science Laboratory for examination only on 21.08.2008. The delay is not explained by the prosecution by examining the thondi clerk. Petitioner would further contend that there is inordinate unexplained delay in completing the investigation and it goes against the mandate of Section 50 of the Abkari Act. Though the occurrence was on 31.07.2008 and that the chemical analysis report was ready on 12.03.2009, the complaint was filed only on 23.12.2009. 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 Crl.R.P. No. 48 of 2014 :4: 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 deal with the first contention raised by the counsel for the revision petitioner that no sample seal is seen affixed in Ext P3 seizure mahazar and that the description of the seal affixed on the sample is also not stated. 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 Crl.R.P. No. 48 of 2014 :5: 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 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. 48 of 2014 :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. A similar view was taken by this court in **Udayan v. State of 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. As regards contention of the revision petitioner regarding the delay in sending sample for chemical analysis, Crl.R.P. No. 48 of 2014 :7: the following aspects have to be considered. Though the sample was produced before the Court on 31.07.2008 and in fact it was send for examination only on 21.08.2008, the delay between the said period is not seen explained by examining the thondy clerk. This Court in **Vijayan** ’s case cited supra has held that the thondi clerk has to be examined to prove that he has been in custody of the sample from the date of receipt of the sample till the date of forwarding and also to prove that the specimen seal produced before the court has been compared with the seal affixed in the mazhar. Since there is an inordinate delay as stated above, the failure to examine the thondi clerk is fatal to the case of the prosecution. 9. As regards the delay in completing the investigation, the petitioner would contend that there is a delay of more than one and half years and even a delay of six months in filing the complaint after receipt of the chemical analysis report on 12.03.2009 and that the unexplained delay is fatal to the case of prosecution. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State [2016 (5) KHC 650]** and **Surendran and Another v. State of Kerala [2013 (3) KHC 780]** and the decision in **Moothedath Sivadasan v. State of** Crl.R.P. No. 48 of 2014 :8: **Kerala, [2021 (1) KLT 744]** in support of his contentions. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. 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 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_ Crl.R.P. No. 48 of 2014 :9: _examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 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 **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. 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 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. Crl.R.P. No. 48 of 2014 :10: 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/-