Kusan, S/o Kuttan Amalloor Kara

**Crl.R.P.No.3684 of 2008 1** **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. 3684 OF 2008** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.424/2006 DATED 24.1.2008 OF ADDL. SESSIONS JUDGE, PATHANAMTHITTA FILED AGAINST THE JUDGMENT IN SC 249/2001 OF ASSISTANT SESSIONS COURT, THIRUVALLA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** KUSAN, S/O.KUTTAN AMALLOOR KARA, KUTTAPUZHA VILLAGE,, THIRUVALLA. BY ADV SRI.UNNI. K.K. (EZHUMATTOOR) ## **RESPONDENTS:** 1 EXCISE INSPECTOR THIRUVALLA. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.R.P.No.3684 of 2008 2** ## **VIJU ABRAHAM,J** ## **----------------------Crl.R.P.No.3684 of 2008 ------------------------------------Dated this the 10[th] day of October, 2023** ## **ORDER** The revision petitioner is the accused in S.C. No.249 of 2001 on the file of the Assistant Sessions Judge, Thiruvalla alleging commission of offence punishable under Section 8(1) & (2) of the Abkari Act. 2. The prosecution case is that on 25.6.1999 at about 7.35 p.m., while CW1 and his party men were on patrol duty and while they were proceeding through a lane situated in front of the house of one Vettuvelil John, in Thiruvalla Municipality, they saw the accused was engaged in transporting 2 litres of illicit arrack, in contravention to the provisions of the Abkari Act, and thereby the accused committed the above said offence. 3. To prove the prosecution case, PWs.1 to 5 and DW1 were examined and Exts.P1 to P7 were marked and MO1 was identified. ## **Crl.R.P.No.3684 of 2008 3** 4. The trial court on consideration of the evidence adduced found that the accused was guilty and he was convicted and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo a further period of six months. Set off was also allowed by the trial court. 5. An appeal was preferred as Crl. Appeal No.424 of 2006, before the Addl. Sessions Judge, Pathanamthitta but the same was dismissed upholding the conviction and sentence imposed by the trial Court. Assailing the said conviction and sentence, this Crl.Revision Petition is filed. 6. The learned counsel appearing for the revision petitioner raised the following contentions: In Ext.P2 seizure mahazar, the specimen seal is not seen affixed nor the description and nature of the seal affixed on the sample is mentioned therein. Yet another contention raised by the petitioner is that in the forwarding note, no specimen seal is seen affixed and further that the name of the guard through ## **Crl.R.P.No.3684 of 2008 4** whom the sample was sent for chemical analysis does not find a place in Ext.P6 forwarding note. 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 considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 8. The first contention raised by the counsel ## **Crl.R.P.No.3684 of 2008 5** for the revision petitioner is that in Ext.P2 seizure mahazar, the specimen seal is not seen affixed nor the description and nature of the seal affixed on the sample is mentioned therein and further that there is no specimen seal affixed in Ext P6 forwarding note. 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. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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 ## **Crl.R.P.No.3684 of 2008 6** specimen seal shall be affixed on 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 **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** This Court in **Moothedath** ## **Crl.R.P.No.3684 of 2008 7** **Sivadasan v. State of Kerala, 2021 (1) KLT 744** 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 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 ## **Crl.R.P.No.3684 of 2008 8** 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. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT 371.** 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 that the name of the guard through whom the sample was sent for chemical analysis does not find a place in Ext.P6 forwarding note and that in the said circumstance the non examination of the thondy clerk of the court or the excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory is fatal to the prosecution case. A similar view was taken by this court in **Crl.R.P.No.3684 of 2008 9** **Kumaran v. State of Kerala, 2016 (4) KLT 718** , paragraph 7 of the judgment reads as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to_ ## **Crl.R.P.No.3684 of 2008 10** _prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ **==> picture [392 x 12] intentionally omitted <==** considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the court below cannot be sustained. In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and he is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith. 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 **Crl.R.P.No.3684 of 2008 11** be refunded to the revision petitioner in accordance with the law. sd/- **VIJU ABRAHAM, JUDGE** pm