KRISHNANKUTTY @ BABU v. STATE OF KERALA

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 27 [ TH ] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 1469 OF 2012 ``` ``` AGAINST THE JUDGMENT DATED 30.06.2007 IN SC 292/2004 OF PRINCIPAL ASSISTANT SESSIONS COURT, THRISSUR CRA 593/2007 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.II (AD HOC), THRISSUR ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KRISHNANKUTTY @ BABU, AGED 50 YEARS, S/O. KUNCHAN, VATTAPARAMBUVEETTIL, MAYANNUR DESOM, VILLAGE, THALAPPILLY TALUK. ``` ``` BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SHRI.MANU MAMALASSERY, SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.1469 of 2012 2 ## **O R D E R** This revision is at the instance of the accused in Sessions Case No.292 of 2004 on the file of Principal Assistant Sessions Judge, Thrissur, assailing the judgment in Crl.Appeal No.593 of 2007 on the file of Additional Sessions Court, Fast Track Court No.II (Adhoc), Thrissur, which upheld his conviction under Section 8(1) and 8(2) of the Abkari Act though modified and reduced his sentence to certain extent. 2. The prosecution case is that on 17.01.2003, at about 5.45 p.m., the revision petitioner was found carrying three litres of arrack through the road near Navodaya School, Mayannur. PW1, the preventive officer and Excise party, detected the offence. The revision petitioner was arrested and the contraband was seized. After completing the legal formalities, the revision petitioner along with the records and the contraband were produced before the Excise office and later before the jurisdictional Magistrate. PW5, the investigating officer, on completing the investigation, laid charge against the revision petitioner under Section 8(1) and 8(2) of the Abkari Act. Crl.R.P No.1469 of 2012 3 3. On appearance of the revision petitioner before the trial court, charge was framed under Section 8(1) and 8(2) of the Abkari Act, to which he pleaded not guilty. Thereupon, prosecution examined PWs 1 to 5, marked Exts.P1 to P12 and identified MO1 to prove its case. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. DWs 1 and 2 were examined and Ext.D1 was marked from defence side. 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(1) and 8(2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of three years and fine of Rs.1,00,000/-, with a default sentence of rigorous imprisonment for a further period of six months. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.593 of 2007. The appellate court upheld the conviction under Section 8(1) and 8(2) of the Abkari Act, though the substantive sentence and default Crl.R.P No.1469 of 2012 4 sentence were reduced to certain extent. So he preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed by the appellate court. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. The revision petitioner is assailing the judgment, pointing out material irregularities, which according to him are sufficient to vitiate the trial. The first point urged by the revision petitioner is that the seizure mahazar does not contain specimen impression of the seal. True that the specimen impression of the seal in the seizure mahazar will guarantee genuineness of the sample taken from the contraband allegedly seized from the accused, when the same seal is used for sealing the sample bottle at the scene of occurrence. When there is no specimen impression of the seal in the seizure mahazar, there cannot be a comparison of the seal affixed in the sample bottle, to verify its genuineness as to say that the same seal is found in the seizure mahazar prepared at the scene of occurrence, and Crl.R.P No.1469 of 2012 5 hence the sample also was taken and sealed at the time of seizure itself. Moreover, the nature of the seal affixed also is not seen stated in the seizure mahazar. 9. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. In **Moothedath Sivadasan v. State of Kerala** **[2021 (1) KLT 744]** , this Court held that when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was 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. In **Bhaskaran v. State of Kerala [2020 KHC 5296]** this Court held that, the 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. Crl.R.P No.1469 of 2012 6 10. Another point urged by the revision petitioner is that no forwarding note is seen prepared or produced before the Magistrate. Forwarding note is a material document to prove that the sample bottle was forwarded to the jurisdictional Magistrate court in time, and that document also should contain the specimen impression of the seal used to seal the sample bottle. The sample will be forwarded to the Chemical Analyst along with the forwarding note which will be counter signed by the Magistrate forwarding the same, and it should contain the name of the Excise Officer also, who carries the sample to the Chemical Examiner’s Laboratory. 11. In the case on hand, the forwarding note itself is conspicuously absent and so we are not in a position to verify whether it contains the specimen impression of the seal or the name of the person who took the sample to the Chemical Examiner’s Laboratory. 12. Learned counsel for the revision petitioner pointed out that the crime and occurrence was registered by CW5, the Assistant Excise Inspector, who was not a competent officer to register the crime. Ext.P8 crime and occurrence report is seen Crl.R.P No.1469 of 2012 7 prepared by the Assistant Excise Inspector, Pazhayannur. It is not mentioned in that document that he was holding the charge of the Excise Inspector, Pazhayannur. Moreover, the date of registration of the crime and occurrence report also will not find a place in Ext.P8. ## 13. Section 40(3)(b) of the Abkari Act reads as follows: ## “ **40 Procedure on arrest and seizure.-** (1) xxx xxx xxx xxx xxx xxx (a) xxx xxx xxx (b) xxx xxx xxx (2) xxx xxx xxx (3) Every person arrested under Section 31 or Section 34 or Section 35 shall be produced before, and articles seized under Section 31 or Section 34 shall be forwarded to, without unnecessary delay,-- (a) xxx xxx xxx (b) to the officer empowered under Section 5A, or to the Abkari Inspector.” 14. As per Clause 26 in Chapter XXV of Kerala Excise Manual Volume-II, Abkari cases shall be registered by Excise Inspectors or by Assistant Excise Inspectors holding charge of the Excise Inspector. Clause 26 in Chapter XXV of Kerala Excise Manual Volume-II reads as follows: Crl.R.P No.1469 of 2012 8 ## “ **Chapter XXV - Crime-Detection, Investigation, Trials and Prevention** **26. Registration of Abkari Cases** :-A bkari cases shall be registered in Form OR.1 by the Excise Inspector of the concerned range from which the case was detected. The specific charge alleged to be committed by the accused persons shall be described in the Crime and Occurrence Report. The Excise Inspector shall affix his dated signature in the Crime and Occurrence Report. Asst. Excise Inspectors who hold charge of the Excise Inspector can also register the crimes at range office. The Excise Inspector of the range office shall peruse the documents produced before him and conduct an enquiry with available documents and materials before registering the crime.” 15. CW5, the Assistant Excise Inspector, who registered the crime and occurrence report was not examined by prosecution to explain the circumstances under which he happened to register the crime and occurrence report. Moreover, it is not stated that he was holding the charge of the Excise Inspector. So prosecution failed to show the authority of CW5 to register the crime and occurrence report. 16. Ext.P12 Chemical Analysis Report shows that the sample analysed contained ethyl alcohol. Unless there was Crl.R.P No.1469 of 2012 9 foolproof despatch of the sample, no sanctity could be attached to that report. As the specimen impression of the seal was absent in the seizure mahazar, we are not in a position to verify the seal with which the sample was sealed. At this juncture, it is pertinent to note that the independent witnesses, examined by the prosecution to prove the arrest and seizure, turned hostile to the prosecution, and according to them, they did not see the Excise officials seizing arrack from the possession of the revision petitioner. The material defects noted earlier, coupled with the hostility of the independent witnesses, make the prosecution case doubtful, and the revision petitioner is entitled to get the benefit of that doubt. 17. The appellate court, without noticing the material aspects discussed above, upheld the conviction and sentence of the revision petitioner, though the sentence was modified and reduced to certain extent. So, this Court is inclined to set aside the conviction and sentence imposed on the revision petitioner, by the impugned judgments. In the result, the revision petitioner is found not guilty of the offences alleged under Section 8(1) and 8(2) of the Abkari Crl.R.P No.1469 of 2012 10 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/-