Krishnan v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 18 [ TH ] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 784 OF 2013 ``` ``` AGAINST THE JUDGMENT DATED 19.01.2012 IN SC 216/2010 OF ASSISTANT SESSIONS COURT, KASARAGOD CRL.APPEAL NO.21/2012 OF ADDITIONAL SESSIONS COURT (ADHOC-III), KASARAGODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KRISHNAN, AGED 59 YEARS, S/O. LINGAYYA, PERIYADUKKA HOUSE, MULLERIYA, KARADUKA VILLAGE, KASARAGOD DISTRICT. ``` ``` BY ADV SRI.SURESH KUMAR KODOTH ``` ## **`- RESPONDENT/RESPONDENT/COMPLAINANT STATE:`** ``` STATE OF KERALA REPRESENTED BY SHO, ADHUR POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SHRI.RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.784 of 2013 2 ## **O R D E R** This revision is at the instance of the sole accused in S.C.No.216 of 2010 on the file of Assistant Sessions Judge, Kasaragod, assailing the judgment in Crl.Appeal No.21 of 2012 on the file of Additional Sessions Judge (Adhoc-III), Kasaragod, which upheld his conviction and sentence under Section 8(2) of the Abkari Act. 2. Prosecution case is that on 22.09.2009, at 08.50 a.m., the revision petitioner was found in possession of about three litres of illicit arrack in a ten litre can at Periyaduka in Karaduka Village, Kasaragod, in contravention of the provisions of the Abkari Act. PW5-the Sub Inspector of Police, Adhur, and Police party detected the offence, while on patrol duty. After investigation, PW6 laid charge-sheet against the accused under Section 55(a) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Section 8(2) of the Abkari Act, to which he pleaded not guilty and claimed to be Crl.R.P No.784 of 2013 3 tried. Thereupon, prosecution examined PWs 1 to 6 and marked Exts.P1 to P9 to prove its case. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. 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 8(2) of the Abkari Act and he was convicted and sentenced to undergo simple imprisonment for four years and fine of Rs.1,00,000/with a default sentence of simple imprisonment, for a further period of six months. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No.21 of 2012. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence and hence dismissed the appeal, upholding the trial court judgment, against which, he has filed this revision Crl.R.P No.784 of 2013 4 petition. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence of the revision petitioner under Section 8(2) of the Abkari Act by the courts below. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. The grounds urged by the revision petitioner for assailing the conviction and sentence are manifold. First of all he would contend that, this is a false case foisted against him and in fact he was arrested from his house and taken to the Police Station. His relatives, who reached the Police Station to take him on bail, were made witnesses in the seizure mahazar as well as in the site plan. He would contend that the material defects and irregularities in the prosecution case will substantiate his plea of innocence. 9. Learned counsel for the revision petitioner produced, for perusal of this Court, true copy of the seizure mahazar, which was supplied to him along with copy of the final Crl.R.P No.784 of 2013 5 report. It was attested by the Station House Officer of Adhur Police Station. Last portion of that seizure mahazar shows the crime number also as CR. No.191 of 2009 under Section 55(a) of the Abkari Act of Adhur Police Station. But the original seizure mahazar, which was marked as Ext.P1 will not show the crime number or the provision under the Abkari Act, for which the crime was registered. So obviously, the copy of seizure mahazar supplied to the revision petitioner was not the true copy of the original seizure mahazar prepared by PW5 at the scene of occurrence, and it casts serious doubt, regarding the genuineness of Ext.P1 seizure mahazar. 10. The specimen impression of the seal with which the sample bottles were sealed, will not find a place in Ext.P1 mahazar. The nature of the seal used to seal the sample bottle also will not find a place in the seizure mahazar. PW5-the detecting officer has not deposed before court the nature of the seal used by him to seal the sample bottle. In the absence of specimen seal in the seizure mahazar, the Crl.R.P No.784 of 2013 6 genuineness of the seal found in the sample bottle lose its authenticity. When there is no specimen impression of the seal affixed on the seizure mahazar, it is difficult to hold that the sample which reached the Chemical Examiner’s Laboratory was the sample taken from the contraband allegedly seized from the possession of the accused. (See **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** & **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** ). 11. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused, was the sample which reached the hands of the Chemical Examiner. The specimen impression of the seal in the seizure mahazar is necessary to complete the link evidence to show that the sample bottle bearing the very same seal reached the Chemical Examiner’s Laboratory for examination. In the absence of specimen impression of the seal in the seizure mahazar, a genuine doubt arises as to the authenticity of the Crl.R.P No.784 of 2013 7 seal found in the sample bottle, which reached the Chemical Examiner’s Laboratory for analysis. The revision petitioner is entitled to get the benefit of that doubt. 12. On going through Ext.P8 Chemical Analysis Report, it could be seen that the sample bottles, which were forwarded from JFCM, Kasaragod, on 22.09.2009 reached the Chemical Examiner’s Laboratory only on 18.12.2009, with a delay of about 2 �⁄� months. Prosecution failed to explain that delay by examining the Police Constable, with whom the sample bottles were forwarded to the Chemical Examiner’s Laboratory. The inordinate delay of 2 ½ months in reaching the sample before the Chemical Examiner’s Laboratory, after it was being forwarded from court, casts serious doubt regarding the identity of the sample, examined before the Laboratory. So prosecution failed to prove tamper proof despatch of the sample from the point of seizure till the point of examination by the Laboratory, and it is fatal to the prosecution case. 13. Another contention taken up by learned counsel for Crl.R.P No.784 of 2013 8 the revision petitioner is that there is violation of Section 53A(2) of the Abkari Act in destroying the contraband after taking the sample. He drew attention of this Court to the fact that Ext.P9 inventory was prepared by PW5 himself, and not by the authorised officer as envisaged under Section 53A of the Abkari Act. On going through Ext.P9 inventory, it could be seen that it was prepared by PW5 on the date of detection itself. Moreover, PW5 categorically admitted before court that he himself prepared the inventory. Ext.P9 was countersigned by the Deputy Excise Commissioner, Kasaragod, even without writing the date of his signature. 14. In **Sathyan v. State of Kerala [2023 (3) KHC** **97 : 2023 (3) KLT 600]** , this Court held that the inventory is to be prepared by the authorised officer and the said requirement cannot be made by some other officer preparing the inventory report, and submitting that report through the authorised officer. In the case on hand, Ext.P9 inventory was admittedly prepared by PW5-the detecting Crl.R.P No.784 of 2013 9 officer, and it was not prepared by the authorised officer, and so it cannot be acted upon, and the same is patently illegal. When Ext.P9 inventory is not acted upon, without producing the entire contraband seized before court, prosecution will not succeed in showing that, three litres of illicit arrack was seized from the possession of the revision petitioner. 15. In **Balakrishna Rai v. State of Kerala [2020 (3) KHC 286 : 2020 (3) KLJ 240]** , this Court held that the practice of certifying the inventory by affixing any seal and by filling up the blank spaces in the seal has to be deprecated. The Magistrates who certify the inventory under the Abkari Act or the Narcotic Drugs and Psychotropic Substances Act have to bear in mind that the certificate being issued by them would be treated as primary evidence in respect of the offence during the trial of the case. Inventory shall be certified by the Magistrates only after carefully verifying the correctness of the particulars of the property mentioned and described in it. In the case on hand, the certification made by the Magistrate was by filling up the Crl.R.P No.784 of 2013 10 blanks in the seal, and it will not show that the Magistrate actually verified the particulars of the articles produced before him. 16. Another allegation against Ext.P9 inventory is that instead of the Executive Magistrate, it was certified by a Judicial Magistrate. In **Santhosh T.A. and Another v. State of Kerala [2017 (5) KHC 107]** , this Court held that a Judicial Magistrate cannot entertain an application under Section 53A of the Abkari Act, since the Act contemplated by it is not a judicial one, but executive, going by Section 3(4) of the Code of Criminal Procedure. Moreover, the certification made by JFCM, Kasaragod, was only a mechanical one, by filling up the blanks in the seal, without actually verifying the particulars of the articles produced before him. That certificate will not reveal that he had verified the can and the contents therein. So also there is nothing to show that the Magistrate, if at all he was considered to be competent to make the certification, made it consciously after verifying the contents. So also Ext.P9 inventory is not liable to be Crl.R.P No.784 of 2013 11 acted upon. 17. Another contention put forward by the revision petitioner is that, the independent witnesses examined in this case turned hostile to the prosecution, and due to the infirmities pointed out in the prosecution case, it may not be safe to convict the accused on the evidence of official witnesses alone. 18. PW2-the independent witness deposed before court that the revision petitioner was taken to the Police Station on the previous night at about 08.30 p.m. Next day morning at about 10.00 a.m., PW2 reached the Police Station, where he was asked to sign Ext.P1 seizure mahazar. PW3, another independent witness, also deposed that he signed Ext.P2 scene mahazar at Police Station. Their testimony shakes the prosecution case that PWs2 and 3 witnessed the occurrence and they signed the seizure mahazar at the place of occurrence itself on 22.09.2009. 19. From the forgoing paragraphs, we have to conclude that prosecution failed to prove the guilt of the revision Crl.R.P No.784 of 2013 12 petitioner beyond reasonable doubt. The infirmities in the prosecution case as stated above are sufficient to doubt the veracity of the case filed against the revision petitioner, and he is entitled to get the benefit of that doubt. The conviction and sentence of the revision petitioner by the courts below, without noticing the aforementioned vital aspects are liable to be interfered with. So the conviction and sentence imposed on the revision petitioner by the courts below are hereby set aside. 20. In the result, the revision petitioner is found not guilty of the offence punishable under Section 8(2) of the Abkari ACt and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-