Kuttan @ Sankaran v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 30 [ TH ] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 1405 OF 2016 ``` ``` SC 495/2011 OF ASSISTANT SESSIONS COURT, OTTAPPALAM ``` ``` CRL.A 439/2014 OF ADDITIONAL SESSIONS COURT - I, PALAKKAD ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KUTTAN @ SANKARAN, AGED 47 YEARS, S/O.VELAYUDHAN, CHAKYAVIL HOUSE, VARODE, OTTAPPALAM VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ``` ``` BY ADV ASWIN P KUMAR ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ## **`SHRI M.C. ASHI, PUBLIC PROSECUTOR`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.1405 of 2016 2 ## **O R D E R** This revision is at the instance of the accused in Sessions Case No.495 of 2011 on the file of the Assistant Sessions Court, Ottapalam, assailing the judgment in Crl.Appeal No.439 of 2014 on the file of the Court of Sessions, Palakkad, which upheld his conviction and sentence under Section 8(1) read with Section 8(2) of the Abkari Act. 2. The prosecution case is that on 22.10.2009, while PW5 and Excise Party were on patrol duty, they found the revision petitioner carrying MO1 can through Ottapalam - Cherpulassery road, and on seeing the Excise party in uniform, he tried to run away. He was intercepted, and on examination of the contents in the can, it was found to be 5 litres of illicit arrack. PW5 arrested the revision petitioner, prepared arrest memo, took sample from MO1 can, labelled and sealed the sample bottle as well as MO1 can with the remanence of illicit liquor. After completing the legal formalities, the accused along with the records were produced before the Excise Inspector, Excise Range Office, Ottapalam. PW3, the Excise Inspector registered Ext.P2 Crime and Occurrence Report, and produced the revision petitioner along with the records and articles before the jurisdictional Magistrate. The sample was forwarded for chemical analysis and on chemical examination, it was found that the sample contained 25.82 % by Crl.R.P No.1405 of 2016 3 volume of ethyl alcohol. After completing investigation, final report was filed against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 3. Before the trial court, the revision petitioner pleaded not guilty to the charge and claimed to be tried. PWs1 to 5 were examined, Exts.P1 to P7 were marked and MO1 was identified by the prosecution to prove its case. On analysing the facts and evidence, the trial court found the revision petitioner guilty of the offences punishable under Sections 8(1) and 8(2) of the Abkari Act, and he was sentenced to undergo simple imprisonment for a period of one year, and to pay a fine of Rs.1,00,000/-, and in default, to undergo simple imprisonment for a further period of three months. Aggrieved by the judgment of conviction and sentence, he preferred Crl.Appeal No.439 of 2014, before the Sessions Court, Palakkad. After hearing the rival contentions, and on re-appraisal of the facts and evidence, the appellate court found that there was nothing to interfere with the conviction and sentence imposed by the trial court, and so the appeal was dismissed, against which, he preferred this revision petition. 4. Now this Court is called upon to verify the legality, propriety and correctness of the judgment delivered by the appellate court, which upheld the judgment of the trial court. 5. Heard learned counsel for the revision petitioner and learned Crl.R.P No.1405 of 2016 4 Public Prosecutor. 6. PW5-the detecting officer gave testimony in tune with the prosecution case. PW3-Excise Inspector registered the Crime and Occurrence Report on production of the revision petitioner and records along with the seized articles before him. Learned counsel for the revision petitioner would contend that there was delay in registering the crime and the delay was not explained, and it is fatal to the prosecution case. On going through Ext.P1 mahazar, it could be seen that it was prepared on 22.10.2009, i.e., on the date of detection itself. Ext.P2 Crime and Occurrence Report was prepared on 23.10.2009, i.e., on the very next day. The testimony of PW5 would show that, after preparing the mahazar, sampling, labelling etc., they reached the office of the Excise Inspector along with the revision petitioner at about 01.00 a.m., and so normally, the Crime and Occurrence Report could have been prepared only on 23.10.2009. So there is no delay in registering the Crime and Occurrence Report, as alleged by the revision petitioner. 7. The next contention is that the independent witnesses turned hostile to the prosecution, and so there is no independent evidence to support the prosecution case. PW2 is the independent witness examined by the prosecution to prove the incident. But he did not support the prosecution case. Hostility of the independent witness Crl.R.P No.1405 of 2016 5 cannot be a ground to discard the evidence of the official witnesses, when it is reliable and trustworthy. 8. Learned counsel for the revision petitioner contended that there occurred delay in questioning the witnesses and for completing the investigation. According to him, though the incident was detected on 22.10.2009, the witnesses were examined only on 15.10.2010, i.e., after about one year. He relied on a decision of this Court in **Chandran** **v. State** reported in **[2016 (4) KLT 727]** , to say that when there is delay in filing the final report, in the absence of sufficient explanation, it will become fatal to the prosecution. In the case cited _(supra)_ , the delay involved in investigation was only 8 months. In the case on hand, the final report reached the court on 25.11.2010, i.e., after about one year. No proper explanation is offered by prosecution as to the reason for delay in questioning the witnesses and to complete the investigation, which is of course fatal to the prosecution case. 9. In **Kumaran v. State of Kerala [2016 (4) KLT 718]** , this Court reiterated the necessity to complete the investigation and to file the final report without delay, and if there is delay, prosecution is bound to explain it satisfactorily, or else, the benefit of that doubt will go to the revision petitioner. Paragraph 6 of the decision **Kumaran [2016 (4) KLT 718]** reads as follows: “6. …. _No explanation had been given by the prosecution as_ Crl.R.P No.1405 of 2016 6 _to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ 10. Another contention taken up by the revision petitioner is that, in Ext.P7 forwarding note, name of the Excise Guard, through whom the sample bottle was sent to the Chemical Examiner’s Lab is kept blank. But Ext.P5 Chemical Analysis Report shows that the sample was received through Police Constable No./Excise Guard No. Rajendran. But that name will not find a place in Ext.P7 forwarding note. Moreover, in Ext.P7 forwarding note, no date is mentioned, though in the covering letter issued from the court, date is mentioned as 02.01.2010. In Ext.P5 Chemical Analysis Report, it is mentioned that the sample was received before the Lab on 04.01.2010. The delay in reaching the sample before the Chemical Examiner’s Lab also is not at all explained by the prosecution. 11. In the decision **Kumaran [2016 (4) KLT 718]** , this Court emphasised the need for writing the name of the Excise Guard, with whom the sample was sent to the analyst, and the necessary precautions to be taken to ensure tamper-proof despatch of the sample to the laboratory. If prosecution fails to establish tamper-proof Crl.R.P No.1405 of 2016 7 despatch of the sample to the laboratory, it will be fatal to the prosecution case. ## 12. Paragraph 7 of the decision **Kumaran [2016 (4) KLT 718]** , reads thus: _“ 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 02/08/2007. 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_ Crl.R.P No.1405 of 2016 8 _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 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… ”_ ## 13. In the decision **Krishnadas v. State of Kerala [2019 KHC** **191]** , this court had occasion to consider the impact of delay in reaching the sample before the laboratory and it was held that when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. Paragraph 6 of that judgment reads as follows: _“ 6. Ext P5 report of analysis shows that the sample was received at the laboratory only on 19/09/2003 The detection in this case was made on 26/06/2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23/07/2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as_ Crl.R.P No.1405 of 2016 9 _early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused. ”_ 14. In the case on hand, though the delay in reaching the sample before the chemical analyst is only two days, that is not explained by the prosecution. The Chemical Analysis Report was seen prepared and issued only on 13.06.2011, i.e., after about 1 ½ years of the receipt of the sample before the Lab, and for that also no proper explanation is forthcoming. All these facts cast serious doubt regarding the genuineness of the sample which reached the Lab for chemical analysis, as to whether the sample which was allegedly seized from the revision petitioner, was the one reached before the Lab. The non-mentioning of the name of the Police Constable/Excise Guard in the forwarding note, with whom the sample was sent to the Chemical Examiner’s Lab, and the delay in reaching the sample before the Lab etc. are suspicious circumstances to doubt the genuineness of the prosecution case, and the benefit of that doubt should definitely go to the revision petitioner. 15. In the above factual scenario, this Court is of the view that, the conviction and sentence of the revision petitioner by the trial court Crl.R.P No.1405 of 2016 10 as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act cannot sustain in the eye of law. In the result, the judgments of the trial court as well as the appellate court are set aside. The revision petitioner is found not guilty of the offences punishable under Sections 8(1) and 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 criminal revision petition is allowed, accordingly. Sd/- **SOPHY THOMAS, JUDGE** DSV/-