Kizakkedath Bhasi v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 ``` ## **`CRL.REV.PET NO. 2583 OF 2006`** ``` AGAINST THE JUDGMENT IN CC 262/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TALIPARAMBA CRA 114/2000 OF ADDITIONAL SESSIONS COURT ADHOC-II,THALASSERY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KIZHAKKEDATH BHASI,S/O KUTTAPPAN, AGED 45 YEARS, NADUVIL AMSOM DESOM, THALIPARAMBA TALUK, KANNUR. ``` ``` BY ADVS. PROMY KAPRAKKATT K.N.ABHILASH ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY THE PUBLIC PROSECUTOR OF THE HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY PP SRI.M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P.No.2583 of 2006 2 ## **VIJU ABRAHAM, J** **.............................................. Crl.R.P.No.2583 of 2006 .............................................. Dated this the 10[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in C.C.No.262 of 1996 on the file of the Judicial First Class Magistrate Court, Taliparamba registered alleging commission of offence punishable under Section 55(b) of the Kerala Abkari Act. 2. The prosecution case is that on 01.10.1995 at 10.30 p.m., the accused was found indulged in manufacturing illicit arrack in his residential house at Uthur in Door No.III/541 of Naduvil Panchayat and thereby the revision petitioner/accused has committed the alleged offences. 3. The prosecution in support of their case examined PW1 to PW3 and marked Exts.P1 to P5 and MO1 to MO7 were identified. 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 rigorous imprisonment for one year and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months **.** Though an appeal was preferred as Crl.Appeal No.114 of 2000 before the Additional Sessions Court (Adhoc-II), Thalassery, the same was Crl.R.P.No.2583 of 2006 3 dismissed confirming the conviction and sentence imposed by the trial court. 5. Assailing the conviction and sentence passed by the courts below, the learned counsel appearing for the revision petitioner raised the following contentions: It is seen that the arrest memo or the arrest intimation is not seen produced and marked by the prosecution. In Ext.P1 mahazar it is stated that the accused was arrested from the spot and that the evidence of PW2, Excise Inspector, Alakkode, is also in the same line. The specific case of the revision petitioner/accused was that he was not arrested from the spot and in the crossexamination of PW2, a specific question was put to him that the accused was not arrested from the spot. In view of the specific contention raised by the petitioner that he was not arrested at all, it was incumbent on the prosecution to produce the arrest memo as well as arrest intimation to prove the arrest of the petitioner. Petitioner would further contend that in Ext.P1 mahazar no specimen seal is seen affixed nor the description of the seal affixed on the samples is mentioned in Ext.P1 mahazar. Petitioner would further contend that no forwarding note is seen produced and marked on the side of the prosecution. A perusal of Ext.P4 chemical analysis report would show that it does not contain the date on which the samples were forwarded to the chemical analysis laboratory and therefore it was incumbent on Crl.R.P.No.2583 of 2006 4 the part of the prosecution to produce the forwarding note to prove when the samples were forwarded to the chemical analysis laboratory for examination. Without the same, it cannot be conclusively proved the date on which the sample was sent and also regarding the safe custody of the sample till the same was forwarded to the chemical analysis laboratory for examination. 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. As regards the first contention that no arrest memo and arrest intimation is seen marked, the petitioner relying on _**D.K.Basu v. State**_ Crl.R.P.No.2583 of 2006 5 _**of West Bengal (1997) 1 SCC 416**_ , which held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest, would contend that the said lacuna is fatal to the case of the prosecution. This court in **Baburaj’s** case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. A similar view was taken by this court in **Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KLT SN 83, Rafeeque v. Sub Inspector of Police, 2020 (4) KLT 188** and **Udayan v. State of Kerala, 2023 (1) KLT 371** . Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 8. Petitioner would further contend that in Ext.P1 mahazar no specimen seal is seen affixed nor the description of the seal affixed on the samples is also mentioned in Ext.P1 mahazar. Petitioner would further contend that no forwarding note is seen produced and marked on the side of the prosecution. 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. 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 Crl.R.P.No.2583 of 2006 6 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 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.** Crl.R.P.No.2583 of 2006 7 **State of Kerala, 2021 (1) KLT 739.** This court in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** 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 the 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 Crl.R.P.No.2583 of 2006 8 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. 9. A perusal of Ext.P4 chemical analysis report would show that it does not contain the date on which the samples were forwarded to the chemical analysis laboratory and therefore it was incumbent on the part of the prosecution to produce the forwarding note to prove when the samples were forwarded to the chemical analysis laboratory for examination. Without the same, it cannot be conclusively proved the date on which the sample was sent and also regarding the safe custody of the sample till the same was forwarded to the chemical analysis laboratory for examination. This court in **Viayan v. State of Kerala, 2021 (5) KLT 321** has 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. I am of the opinion that the non-examination of the thondy clerk, in the facts of the present case, 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 Crl.R.P.No.2583 of 2006 9 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 or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM JUDGE** cks