K.P. Shameer v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.1267 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CRA 165/2006 DATED 25-09-2006 OF ADDITIONAL SESSIONS COURT, VADAKARA** **AGAINST THE ORDER/JUDGMENT IN SC 548/2004 DATED 14-02-2006 ASSISTANT SESSIONS COURT, VADAKARA** ## **REVISION PETITIONER/S:** **K.P.SHAMEER, S/O. ABDURAHIMAN, AYANIKKADU AMSOM DESOM, KOYILANDY TALUK.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN SRI.PRASANTH M.P** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT. SREEJA .V, PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.R.P.No.1267 of 2007** -2- ## **ORDER** **The revision petitioner was convicted and sentenced by the courts below under Section 55(a) of the Abkari Act.** **2. The prosecution allegation is that on 26.02.2002 at about 1.00 p.m., the revision petitioner was found in possession of 13 bottles of Indian Made Foreign Liquor, each bottle having a capacity of 375 ml. each, in contravention of the provisions of the Abkari Act. The total quantity of the contraband possessed by the revision petitioner was 4.875 litres.** **3. Heard.** **4. The learned counsel for the** ## **CRL.R.P.No.1267 of 2007** -3- **revision petitioner has argued that since there was long delay in producing the contraband and the samples before the court, the revision petitioner is entitled to benefit of doubt.** **5. Ext.P5 is the property list, which would show that the contraband and the samples were received in the court only on 14.03.2002, even though the incident in this case was on 26.02.2002. PW5 stated that he did not produce the contraband and the samples before the court due to the strike by the State Government Employees. PW7 was the Investigating Officer. He also stated that the delay occurred due to the strike** **CRL.R.P.No.1267 of 2007** -4- **of the Government Servants in Kerala. However, PW7 admitted that there was a further delay of six days after the strike in producing the contraband and the samples before the court. The said delay could not be explained by PW7. PW5 also did not state any reason for the said delay in producing the contraband and the samples before the court. Thus, there was a total delay from 26.02.2002 to 14.03.2002 in producing the contraband and the samples before the court. Even if it is assumed that some part of the delay could be explained by the prosecution, the evidence on record would show that the prosecution could not establish the further** **CRL.R.P.No.1267 of 2007** -5- **delay of seven days in producing the contraband and the samples before the court. In the said circumstances, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the revision petitioner. In the said circumstances, the revision petitioner is entitled to benefit of doubt.** **6. There is yet another reason to grant benefit of doubt to the revision petitioner. It appears that Ext.P6 copy of the forwarding note does not contain the facsimile of the seal of the Officer who** ## **CRL.R.P.No.1267 of 2007** -6- **sealed the samples from the spot. PW1 was the Detecting Officer. He seized the contraband from the spot. PW1 stated that two bottles were taken as samples and the said bottles were sealed at the spot. However, the said seal of PW1 is not seen on Ext.P6 copy of the forwarding note. The evidence of PW5 would also show that the sample seal was not affixed on Ext.P6 copy of the forwarding note.** **7. It is true that the seal of the court was affixed on Ext.P6 copy of the forwarding note. However, the seal affixed on the bottles was not affixed on Ext.P6 copy of the forwarding note.** **CRL.R.P.No.1267 of 2007** -7- **8. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:** **“Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.”** **9. In Ravi v. State of Kerala [2011** **(3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which** ## **CRL.R.P.No.1267 of 2007** **was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamperproof condition.** **10. In Krishnan H. v. State [2015 (1)** **KHC 822], the court held that the absence of sample seal at the space provided for the same in the copy of the forwarding note is sufficient reason for presuming that the sample seal was not provided in the original forwarding note.** **11. In this case, no evidence was adduced by the prosecution to show that the sample seal was affixed on the original forwarding note. In the said circumstances,** ## **CRL.R.P.No.1267 of 2007** -9- **there is no satisfactory link evidence to show that the same samples which were drawn from the contraband seized from the revision petitioner which eventually reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. Consequently, there is no link evidence connecting the revision petitioner with the samples anlaysed in the laboratory. In the said circumstances also, the revision petitioner is entitled to benefit of doubt.** **In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner stands acquitted.** **CRL.R.P.No.1267 of 2007** -10- **The bail bond of the revision petitioner stands discharged.** **Needless to state that if the revision petitioner had already deposited any amount before the trial court pursuant to the direction of this Court, the revision petitioner is entitled to reimbursement of the said amount from the court concerned.** Sd/- **B. SUDHEENDRA KUMAR, JUDGE** **STK**