K. Bhaskaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** **Crl.Rev.Pet.No.4649 OF 2006** **AGAINST THE JUDGMENT IN CRA 245/2004 DATED 26-06-2006 OF ADDITIONAL SESSIONS JUDGE (ADHOC-III), KASARAGODE** **AGAINST THE JUDGMENT IN SC 553/2000 DATED 01-06-2004 OF ASSISTANT SESSSIONS COURT, KASARAGOD AT HOSDURG** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **K.BHASKARAN, AGED 47 YEARS S/O.KANNAN, RESIDING AT KANDANMOOLA VEEDU, PARAPPA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV. SRI.MADHU.T.** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 THE SUB INSPECTOR OF POLICE VELLARIKUNDU POLICE STATION, VELLARIKUNDU, HOSDURG TALUK, KASARAGOD DISTRICT.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.08.2020, THE COURT ON 07.09.2020 PASSED THE FOLLOWING:** Crl.A.No.1337/2006 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.4649 of 2006 -------------------------------------------Dated this the 7[th] day of September, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.553/2000 on the file of the Court of the Assistant Sessions Judge, Hosdrug. 2. The prosecution case is that, on 26.12.1999, at about 14.45 hours, at the property where the house of the petitioner/accused is situated at the place Kadanmoola, PW5 Sub Inspector found the accused in possession of a can containing two litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be Crl.A.No.1337/2006 3 tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P7 documents and MO1 and MO2 material objects. No evidence was adduced by the accused. 5. The trial court found the petitioner/accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him 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 period of three months. 6. The petitioner filed Crl.A.No.245/2004 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. Crl.A.No.1337/2006 4 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW5 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW4 was the police constable who was in the police party led by PW5. His evidence corroborates the testimony of PW5 with regard to the material particulars of the occurrence. 10. PW3 is the independent witness examined by the prosecution. He did not support the prosecution case. He denied having seen the incident. 11. Ext.P7 is the chemical examination report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 18.40% by volume of ethyl alcohol. 12. Learned counsel for the petitioner contended that, conducting of investigation and filing of final report by the same police officer who detected the offence, caused prejudice to the petitioner and he is entitled to be acquitted on that ground. Crl.A.No.1337/2006 5 13. _Per contra_ , learned Public Prosecutor has contended that investigation by the same officer who detected the offence is not prohibited under law and that the petitioner has not shown that any prejudice was caused to him. 14. In the instant case, PW5 Sub Inspector detected the offence, registered the case against the accused, conducted the entire investigation and filed final report against the accused. 15. In **Mohan Lal v. State of Punjab : (2018) 17 SCC 627** , the Supreme Court had held that the informant and the investigator must not be the same person and where the investigation is conducted by the same person who is the informant, it is not necessary that bias or prejuduice to the accused must actually be proved. However, the decision in **Mohan Lal** (supra) now stands overruled by the Constitution Bench in **Mukesh Singh v. State : 2020 SCC OnLine SC 700** (Judgment dated 31.08.2020 in Special Leave Petition (Crl.) Diary No.39528/2018), wherein it has been held as follows: Crl.A.No.1337/2006 6 _”In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.”_ (emphasis supplied). 16. Therefore, in the instant case, it is to be examined whether the detection of the offence and the investigation of the case and filing of final report by the same police officer has caused any prejudice to the accused. Crl.A.No.1337/2006 7 17. PW5 Sub Inspector has given evidence that he seized a can containing two litres of arrack from the possession of the accused and that he took sample of the liquid from the can in a bottle and that he affixed seal on the sample bottle. He has also given evidence that he arrested the accused at the spot of the occurrence. 18. PW1 has not given any evidence that he prepared arrest memo on arresting the accused. He has also not given any evidence that intimation regarding arrest was given to any relative or friend of the accused. No arrest memo or arrest intimation has been brought in evidence by the prosecution. ## 19. In **Ramankutty v. Excise Inspector : 2013 (3) KHC** ## **308** , this court has held as follows: _“It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the trial court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced_ Crl.A.No.1337/2006 8 _before the trial court. So it can be safely concluded that it was not prepared at the time of alleged arrest. ......... If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the revision petitioner, immediately after the arrest. ...... The noncompliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum of arrest, beyond reasonable doubt”._ 20. PW5 has not given evidence as to the nature or description of the seal which he had affixed on the bottle containing the sample. Ext.P3 seizure mahazar is also silent on this aspect. There is no evidence to show that PW5 had produced the specimen of the seal in the court or that he had provided the same in the forwarding note prepared by him for sending the sample for analysis. The nature of the specimen seal provided in Ext.P6 copy of the forwarding note is not legible. In Crl.A.No.1337/2006 9 these circumstances, there is no assurance that the very same sample allegedly drawn by PW5 at the spot of the occurrence from the liquid in the can was produced in the court and the very same sample was forwarded for analysis and that Ext.P7 chemical analysis report relates to the very same sample. 21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See **Achuthan v. State of Kerala : 2016 (1) KLD 391 : ILR 2016 (2) Ker 145** ). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only Crl.A.No.1337/2006 10 when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See **Majeedkutty v. Excise Inspector : 2015 (1) KHC 424** ). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See **Rajamma v. State of Kerala : 2014 (1) KLT 506** ). 22. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related ( See **Vijay Pandey v. State of U.P: AIR 2019 SC 3569).** Crl.A.No.1337/2006 11 23. It is not the case of the prosecution that there was no other officer available to conduct the investigation. It is also not the case of the prosecution that for some other reason PW5 was compelled to conduct the entire investigation and to file final report against the accused. It is a case in which, without any exigencies of the situation, the detecting officer who registered the case himself conducted the entire investigation and filed final report. In view of the infirmities pointed out earlier with regard to the arrest of the accused and the steps taken for forwarding the sample for analysis, the “one man show” conducted by PW5 has definitely caused prejudice to the accused. 24. The above mentioned vital aspects have not been properly considered by the courts below while appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner/accused cannot be sustained. 25. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 55(a) of the Abkari Act, which Crl.A.No.1337/2006 12 stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr _True Copy_ _P S to Judge_