Kunhan, S/O Kunhikolavan 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. 1552 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 603/2004 OF THE COURT OF ADDL SESSIONS JUDGE FAST TRACK COURT NO.II, PALAKKAD SC 311/2002 OF ASSISTANT SESSIONS COURT, OTTAPPALAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KUNHAN,S/O.KUNHIKOLAVAN KALAPARAMBIL HOUSE, KEEZHMURI DESOM,, KOPPAN VILLAGE, OTTAPALAM TALUK. BY ADVS. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA EXCISE INSPECTOR, EXCISE RANGE, PATTAMBI,, OTTAPALAM TALUK, PALAKKAD. BY ADVS. P.P., SRI. RENJIT GEORGE SRI.K.RAJESH SUKUMARAN ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 1552 of 2007 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 1552 of 2007 ============================ Dated this the 10[th] day of October, 2023** ## **O R D E R** While the revision petition was pending consideration the revision petitioner passed away and with the leave of the Court, the revision petition is prosecuted by his son/legal heir as permitted by this Court as per the order in Crl.M.A. No. 8123 of 2013 dated 31.01.2014. 2. The revision petitioner herein is the accused in S.C. No. 311 of 2002 of Asst. Sessions Court, Ottapalam alleging commission of offences punishable under Section 55(a) of Abkari Act, 1077 and Section 8(1) and (2) of Abkari (Amendment) Act, 1997. 3. The prosecution allegation is that on 16.11.1998 at about 5.30 pm, the accused was found in possession and moving with two litres of arrack in a black coloured plastic can having capacity of five litres in violation of the provisions of the Abkari Act and thereby the accused has committed the alleged offences. 4. The prosecution in support of their case examined Crl.R.P. No. 1552 of 2007 :3: PWs 1 to 4 and marked Exts P1 to P6 and identified MO1. The trial Court found the accused guilty and convicted him to undergo simple imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year. The trial Court also allowed set-off. 5. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.603 of 2004 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 6. Assailing the conviction and sentence passed by the Court below, the counsel for the revision petitioner raised the following contentions. The primary contention raised by the petitioner is that in Ext P1 seizure mahazar, no specimen seal is seen affixed and the description of the seal affixed on the sample is also not mentioned in the seizure mahazar. Yet another contention raised is regarding the discrepancy in Exts P5 forwarding note and P6 chemical analysis report. The receipt issued by the chemical examiner of the Chemical Analysis Laboratory, Ernakulam bearing receipt No.402/99 reveals that item No.332/98 dated 20.02.1999 and five sealed packets were Crl.R.P. No. 1552 of 2007 :4: received through an excise guard by the name, Abdul Malik. But a perusal of Ext P6 chemical analysis report would reveal that the samples which were forwarded as item No. 344/98 dated 20.02.1999 have been received in the chemical analysis laboratory and the same has been analysed in the laboratory. So there is a difference in the item number mentioned in the receipt issued by the chemical analysis laboratory and in the chemical analysis report which is produced as Ext P6. 7. 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 Crl.R.P. No. 1552 of 2007 :5: considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 8. The first contention raised by the learned counsel is that in Ext P1 seizure mahazar, no specimen seal is seen affixed and the description of the seal affixed on the sample is also not mentioned therein. A specific question was put to PW1, who would admit that no specimen seal is affixed on the seizure mahazar and he would further depose that his initial is “vc” and that is his personal seal, but admits that such a seal has not been affixed in Ext P1 seizure mahazar. It is relevant to note that in Ext P5 forwarding note specimen seal that is affixed is totally different from the seal that is mentioned by PW1 in his examination. 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. 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 Crl.R.P. No. 1552 of 2007 :6: 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, 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 **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** and 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 Crl.R.P. No. 1552 of 2007 :7: 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 one tested are to be correlated. 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. 9. Yet another contention raised is regarding the discrepancy in Ext P5 forwarding note and Ext P6 chemical Crl.R.P. No. 1552 of 2007 :8: analysis report. The receipt issued by the chemical examiner of the Chemical Analysis Laboratory, Ernakulam bearing receipt No.402/99 reveals that item No.332/98 dated 20.02.1999 and five sealed packets were received through an excise guard by the name, Abdul Malik. But a perusal of Ext P6 chemical analysis report would reveal that the samples that were forwarded as item No. 344/98 dated 20.02.1999 have been received in the chemical analysis laboratory and the same has been analysed in the laboratory. So there is a difference in the item number mentioned in the receipt issued by the chemical analysis laboratory and in the chemical analysis report which is produced as Ext P6. The said lacuna has not been explained and the chemical analyst ought to have been examined to explain the said lacuna. The same has not been done in the present case and therefore it cannot be conclusively said that it is the very same sample that was sent to the chemical analysis laboratory that has been examined, based on which Ext P6 report was prepared. Though the chemical examiner was cited as a witness in the final report, the prosecution did not care to examine him, especially when there is a discrepancy as pointed out above which according to me is fatal to the case of the Crl.R.P. No. 1552 of 2007 :9: 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 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** sbk/-