Kuttappan s/o Kuttan v. State of Kerala

**Crl.R.P.No.954 of 2013 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 CRL.REV.PET NO. 954 OF 2013** **AGAINST THE CONVICTION AND SENTENCE PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE (ADHOC)I, PATHANAMTHITTA IN CRA 143/2012 AS PER JUDGMENT DATED 22.01.2013 CONFIRMING THE CONVICTION AND SENTENCE PASSED IN SC 115/2011 ON THE FILES OF THE ASSISTANT SESSIONS JUDGE, THIRUVALLA AS PER JUDGMENT DATED 17.08.2012** ## **REVISION PETITIONER:** KUTTAPPAN S/O.KUTTAN, MAPRATHU HOUSE, KALLOPARA VILLAGE, MALLAPPALLY. BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA) ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** PP - RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.R.P.No.954 of 2013 2** ## **VIJU ABRAHAM,J** ## **-----------------------** ## **Crl.R.P.No.954 of 2013 ------------------------------------Dated this the 5[th] day of October, 2023** ## **ORDER** The revision petitioner is the accused in S.C. No.115 of 2011 on the file of the Assistant Sessions Judge, Thiruvalla alleging commission of offence punishable under Section 8(1) r/w 8(2) of the Abkari Act. 2. The prosecution allegation is that on 17.4.2007 at about 6 pm the accused possessed and transported 10 litres of arrack in 10 litre jerry can at the place which leads to Paduthode- Vennikulam Panchayat road and the same was so detected by CW1. Since the act of the accused was in contravention of the provisions of the Abkari Act, the accused is alleged to have committed the above-said offence. 3. To prove the case of the prosecution PWs.1 to 5 were examined and Exts.P1 to P8 were marked and MO1 was identified. ## **Crl.R.P.No.954 of 2013 3** 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and the accused was convicted and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for 6 months. 5. Aggrieved by the said conviction and sentence, the revision petitioner filed an appeal as Crl.Appeal No.143 of 2012 before the Additional District and Sessions Judge, Pathanamthitta. The appellate court confirmed the conviction and sentence passed by the trial court but the sentence passed by the lower court was modified and the appellant was sentenced to undergo rigorous imprisonment for a period of two years and imposed a fine of Rs.1 lakh and in default of payment of fine to undergo simple imprisonment for one month. 6. The petitioner raised various contentions assailing the order of conviction and sentence ## **Crl.R.P.No.954 of 2013 4** imposed by the Court below. In Ext.P1 mahazar no specimen seal is affixed, nor the description of the seal affixed on the sample has been stated. Yet another contention raised by the learned counsel for the revision petitioner is that in Ext.P7 forwarding note the name of the person through which the same was forwarded to the chemical analysis laboratory is not mentioned. On the basis of the judgment of this Court in _**Kumaran**_ ## _**P v. State of Kerala and Others (2016 5 KHC 632)**_ it is contended that in such circumstances, it is incumbent on the part of the prosecution to examine the official through which the sample was sent or the thondy clerk, which has not been done in the present case. The revision petitioner specifically takes a contention that though the occurrence was on 17.4.2007, the sample was sent for examination only on 28.4.2007, there being a delay, which should have been explained by the prosecution by examining either the thondy clerk or the person through whom the sample was sent. ## **Crl.R.P.No.954 of 2013 5** 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. **==> picture [394 x 11] intentionally omitted <==** regarding the non-affixture of specimen seal in ## **Crl.R.P.No.954 of 2013 6** Ext P1 mahazar and the non-description of the seal affixed on the sample. 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 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** ## **Crl.R.P.No.954 of 2013 7** **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 prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof ## **Crl.R.P.No.954 of 2013 8** 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. 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 ## **Crl.R.P.No.954 of 2013 9** revision petitioner is entitled to the benefit of doubt. 9. Further contention raised by the learned counsel for the revision petitioner is that in Ext.P7 forwarding note the name of the person through which the same was forwarded to the chemical analysis laboratory is not mentioned. The revision petitioner also took a contention that though the occurrence was on 17.4.2007, the sample was sent for examination only on 28.4.2007, there being a delay, the same should have been explained by the prosecution. In _**Kumaran’s**_ case cited supra it is stated that in such circumstances, it is incumbent on the part of the prosecution to examine the official through which the sample was sent or the thondy clerk, which has not been done in the present case. The said unexplained delay and non-mentioning of the name of the person through which the sample was sent for chemical examination in the forwarding note is fatal to the case of the prosecution. ## **Crl.R.P.No.954 of 2013 10** 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. **==> picture [393 x 12] intentionally omitted <==** 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. **==> picture [90 x 9] intentionally omitted <==** **VIJU ABRAHAM, JUDGE** pm