Kanakamma v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 29 [ TH ] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 ``` ## **`CRL.REV.PET NO. 944 OF 2006`** ``` AGAINST THE JUDGMENT DATED 16.12.2005 IN CC 550/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADOOR. ``` ``` CRL.APPEAL NO.71/2005 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) COURT-I, PATHANAMTHITTA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KANAKAMMA, D/O.SARASAMMA, 'SURESH BHAVAN', KANJIRATHINMOOLAYIL, THUVAYOOR, VADAKUMURI, EARATHU VILLAGE,, ADOOR TALUK. ``` ``` BY ADVS. SRI.RATHEESH.P.R. SRI.NIJOE MATHILUNKAL JOSEPH ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, THROUGH THE EXCISE INSPECTOR, ADOOR REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SHRI. RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.944 of 2006 2 ## **O R D E R** This revision is at the instance of the accused in C.C.No.550 of 1996 on the file of Judicial Magistrate of the First Class, Adoor, assailing the judgment in Crl.Appeal No.71 of 2005 on the file of Additional District & Sessions Judge (Ad-Hoc) Court-I, Pathanamthitta, which upheld her conviction and sentence under Section 58 of the Abkari Act. 2. Prosecution case is that on 29.03.1996, at about 11.00 a.m., the revision petitioner was found carrying four litres of illicit arrack in a plastic jar through a panchayat road. CW1, the preventive officer and Excise party detected the offence, arrested the revision petitioner and seized the contraband. PW3, the Excise Circle Inspector, registered the crime and occurrence report on production of the contraband along with the revision petitioner before the Excise Circle Office. After investigation, the revision petitioner was charged under Section 58 of the Abkari Act. 3. On appearance of the revision petitioner before the Crl.R.P No.944 of 2006 3 trial court, particulars of offence was read over and explained, to which she pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 3, marked Exts.P1 to P5 and identified MO1 to prove its case. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. She denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 58 of the Abkari Act and she was convicted and sentenced to undergo simple imprisonment for three months and fine of Rs.15,000/- with a default sentence of simple imprisonment for a further period of one month. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No.71 of 2005. The appellate court dismissed the appeal upholding her conviction and sentence, against which she has preferred Crl.R.P No.944 of 2006 4 this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner concurrently by the courts below. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. The alleged occurrence is on 29.03.1996. C.C.No.550 of 1996 was disposed of by the trial court on 31.01.2005. The appeal preferred by the revision petitioner was also disposed of on 16.12.2005. When the revision petition was taken up for hearing on 03.11.2023, it was found that Lower Court Records (LCR) were not received from the trial court. LCR was called for, and a report was received from Judicial First Class Magistrate-I, Adoor, stating that they are taking earnest efforts to trace out the file. Though time was granted till 27.11.2023 to trace out the file, a subsequent report was received from the learned Magistrate stating that it was not possible to trace out the Crl.R.P No.944 of 2006 5 file, and to his belief, it was irrecoverably lost, as there was shifting of court buildings. Moreover as the case pertains to the year 1996, it is not an easy task to trace out a 27 year old file from a congested criminal court. So this Court decided to proceed with the case without giving any further directions to the trial court for tracing out the file, as it will be a futile exercise. No further action is warranted against the staff also, as most of the staff who had handled the file might have retired by this time. 9. L earned counsel for the revision petitioner furnished copies of records, and hence even without the LCR, forwarded from the trial court, this Court is inclined to hear this revision petition. 10. Heard learned counsel for the revision petitioner, and learned Public Prosecutor. 11. Learned counsel for the revision petitioner is assailing the conviction and sentence imposed on the revision petitioner pointing out the material irregularities, which would have been sufficient to vitiate the trial. Crl.R.P No.944 of 2006 6 CW1-the detecting officer could not be examined as he was no more. The testimony of PW1 alone is there to prove the seizure and arrest. Ext.P1 is the seizure mahazar prepared by CW1 at the time of detection. On going through the copy of seizure mahazar made available by learned counsel for the revision petitioner, it could be seen that, it does not contain the specimen impression of the seal. The nature of the seal used to seal the sample bottle also will not find a place in the seizure mahazar. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. 12. The prosecution is duty bound to prove tamper proof despatch of the sample, from its seizure till it reaches the hands of the Chemical Examiner. Absence of specimen impression of the seal in the seizure mahazar gives room to doubt the genuineness of the seal alleged to have been affixed on the sample bottle. 13. In **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** this Court held that, the Crl.R.P No.944 of 2006 7 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. Moreover, 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. Further the nature of the seal used shall be mentioned in the seizure mahazar also. 14. The documents marked by the prosecution do not contain forwarding note and the arrest memo. 15. The forwarding note was also necessary to prove the link evidence that the sample of the contraband seized from the accused, reached the court as well as the Chemical Examiner’s Laboratory. This Court in **Ajayakumar v. State** **of Kerala [2021 KHC 3872]** observed that in the absence of forwarding note, the link evidence could not be said to be established, and hence the only possible conclusion is that, the prosecution failed to prove that, the sample seized from the accused was the sample which reached the court, as well Crl.R.P No.944 of 2006 8 as the Chemical Examiner’s Laboratory. So the non-production of the forwarding note also is fatal to the prosecution case. 16. In **Baburaj v. State of Kerala [2021 (6) KLT 416 : 2021 (6) KHC 92]** this Court following the decision **Ramankutty v. Excise Inspector, Chelannur Range** **[2013 (3) KHC 308]** held that in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 17. When the arrest memo is not produced by the prosecution, a genuine doubt arises as to the factum of arrest of the revision petitioner by the detecting officer at the scene of occurrence. The independent witness-PW2 turned hostile to the prosecution and he did not support the arrest of the revision petitioner and seizure of the contraband from her possession. 18. Absence of specimen impression of the seal in the seizure mahazar, absence of forwarding note, arrest memo Crl.R.P No.944 of 2006 9 etc. are sufficient to doubt the veracity of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. The conviction and sentence of the revision petitioner by the trial court, without noticing these facts, and the dismissal of appeal by the appellate court, upholding her conviction and sentence are hence liable to be set aside. 19. In the result, the revision petitioner is found not guilty of the offence alleged under Section 58 of the Abkari Act and she is acquitted thereunder. Her bail bond is cancelled and she is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-