Kochuraman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 CRL.REV.PET NO. 3989 OF 2007** **AGAINST THE ORDER/JUDGMENT CC 593/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR CR.A. 288/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** KOCHURAMAN, S/O NANU, SURESH BHAVANAM, PAZHAKULAM PADINJARU MURI, PALLICKAL VILLAGE, ADOOR TALUK. BY ADV SRI.B.MOHANLAL ## **RESPONDENT/RESPONDENT/COMPLAINANT & STATE:** STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR OF ADOOR EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI. M. C. ASHI **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.3989 of 2007 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.3989 of 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of September, 2023 ## **ORDER** The revision petitioner is the accused in C.C. No.593/1998 on the file of the Judicial First Class Magistrate Court, Adoor, alleging commission of offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that on 19.05.1997 at about 12.45 pm, the accused was found in possession of 5 litres of illicit arrack by the Excise Range Officer while conducting patrolling duty through a public road starting from Pullipara junction leading to Perumchira Ela and thus committed the offence. 3. To prove the prosecution case, PWs 1 to 5 were examined and marked Exts. P1 to P3 and MO1. The trial court convicted the accused and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.15,000/- and in default of payment of the fine, to undergo simple imprisonment for a further period of one month. Though appeal was preferred :3: CRL. R.P. No.3989 of 2007 as Crl. Appeal No.288/2004, the Additional(Adhoc) Fast Track Court-III, Pathanamthitta as per judgment dated 31.08.2006, dismissed the appeal, confirming the conviction and sentence. 4. The learned counsel appearing for the revision petitioner submitted that the conviction and sentence passed by both the courts are illegal, improper and irregular and that the prosecution was not successful in proving the case against the petitioner /accused beyond reasonable doubt. It is also submitted that it is PW2, who arrested the accused, but no arrest memo or arrest intimation is seen produced to prove the arrest or intimation of arrest to the near relatives. PW4 and 5 who are independent witnesses examined on the side of the prosecution did not support the prosecution case. It is further contended that in Ext.P2 mahazar, no specimen seal is seen affixed and that no property list is seen produced and marked. It is also contended that no forwarding note was marked and produced before the trial court. The learned counsel for the revision petitioner based on the evidence of PW1 submits that a request was made to the court to take samples from the thondi articles and to send the same for CRL. R.P. No.3989 of 2007 :4: chemical analysis and the sample being taken by the court, the same is irregular since the court has no power to do so. 5. 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. 6. The first contention raised by the learned counsel for the revision petitioner is that in the present case, no arrest memo or :5: CRL. R.P. No.3989 of 2007 arrest intimation is produced and marked to prove the arrest of the petitioner and the consequential intimation of the same to the near relative. The Apex Court in _**D.K.Basu v. State of West Bengal [(1997) 1 SCC 416],**_ has 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. 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. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore the noncompliance of mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in _**Ramankutty v. Excise Inspector, Chelannur Range[2013 (3)**_ _**KLT SN 83]**_ which held that noncompliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. This court in _**Rafeeque**_ CRL. R.P. No.3989 of 2007 :6: _**v. Sub Inspector of Police[2020 (4) KLT 188]**_ has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this court in _**Udayan v. State of Kerala, [2023 (1) KLT 371].**_ Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 7. The next contention raised by the counsel for the revision petitioner is that in Ext P2 mahazar, no specimen seal is seen affixed and that no property list is seen produced and marked in the trial. It is further contended that no forwarding note is produced and marked in trial. 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. In the present case, the forwarding note by which the sample of the contraband was sent for chemical CRL. R.P. No.3989 of 2007 :7: analysis is also not produced and marked. In _**Natarajan 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 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)], Ramachandran v. State of Kerala[2021 (1) KLT 739]**_ and in _**Moothedath Sivadasan v. State of Kerala, [2021 (1) KLT 744].**_ This court in _**Sasidharn v. State of Kerala[2007 (1) KLT 720]**_ has considered on 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 :8: CRL. R.P. No.3989 of 2007 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. The nonproduction of the property list in the trial also cast a doubt on the prosecution case regarding the alleged seizure of the contraband from the possession of the petitioner. 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. Yet another contention raised by the counsel for the :9: CRL. R.P. No.3989 of 2007 revision petitioner based on the evidence of PW1 is that a request was made to the court to take samples from the thondi articles and to send the same for chemical analysis and the sample being taken by the court, the same is irregular, since the court has no power to do so. A perusal of the appellate court judgment reveals the said aspect wherein it stated that the evidence of PW1 would show that as per his requisition, the sample was taken from the court. This court in _**Baburaj**_ **’** s case 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 court will go against the prosecution case. A similar view was taken in _**Smithesh v. State of Kerala[2019 (2) KLT 974]** ._ 9. 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 CRL. R.P. No.3989 of 2007 **==> picture [20 x 9] intentionally omitted <==** 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. Sd/- **VIJU ABRAHAM JUDGE** sm/