Kuttappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945** ## **CRL.REV.PET NO. 4641 OF 2006** **AGAINST THE JUDGMENT IN CRA 169/2002 DATED 15.02.2006 OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC) COURT-I, PATHANAMTHITTA AND CC 458/1998 DATED 30.01.2002 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, THIRUVALLA** ## **REVISION PETITIONER:** KUTTAPPAN, AGED 58 YEARS, S/O.PAPPU, VALAMPARAMPIL HOUSE, KAVUMBHAGOM KARA, THIRUVALLA. BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP ## **RESPONDENT:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** PP - M.C.ASHI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Crl.R.P.No.4641 of 2006 2** ## **VIJU ABRAHAM,J** ## **-----------------------** ## **Crl.R.P.No.4641 of 2006 ------------------------------------Dated this the 15[th] day of September, 2023** ## **ORDER** The revision petitioner is the accused in C.C. No. 458 of 1998 on the file of the Judicial Magistrate of First Class, Thiruvalla alleging commission of offence punishable under Section 55(1) of the Abkari Act. 2. The prosecution case is that on 28.11.1996 at 6.15 p.m., Preventive Officer along with his patrol party while engaged in patrol duty on the eastern road of the eastern bridge of Peringara temple, found the accused at the northern side of said road, carrying a plastic cover containing 14 covers of 100 ml each of illicit arrack. The accused was arrested and contraband articles were sealed and seized after preparing mahazar. Crime and occurrence report No.80/96 has been registered by the Thiruvalla Excise Range against accused and after the completion of the investigation, CW5 laid ## **Crl.R.P.No.4641 of 2006 3** charge sheet before the court alleging commission of offence punishable under Section 55(1) of the Abkari Act. The case was numbered as CC No.458 of 1998 on the file of the Judicial Magistrate of 1[st] Class, Thiruvalla. 3. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P3 and MO1 series were marked. 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one month. 5. An appeal preferred by the revision petitioner as Crl. Appeal No.169 of 2002 was also dismissed by the appellate court confirming the conviction and sentence imposed by the trial court. Aggrieved by the said conviction and sentence, this Crl.Revision Petition is filed. ## **Crl.R.P.No.4641 of 2006 4** 6. The learned counsel for the petitioner would submit that there are serious lacuna on the part of the prosecution in proving the case against the petitioner. Petitioner further submits that no occurrence witnesses were examined by the prosecution and independent witnesses PW3 and PW4 who are the attesting witnesses to Ext.P1 mahazar also did not support the prosecution case. The petitioner would further submit that the arrest memo and the arrest intimation have not been marked and produced and going by the judgment of this Court in _**D.K.Basu v. State of West Bengal (1997) 1 SCC 416**_ arrest memo and the signature of the accused on the same,is a substantial proof of the arrest of the petitioner and the date and time alleged by the prosecution. It is further contended by the petitioner that the incident happened on 28.8.1996 and Ext P1 seizure mahazar was produced before the court only on 12.3.1997 and the delay of almost 4 months is not explained by the prosecution. Petitioner has a further contention ## **Crl.R.P.No.4641 of 2006 5** that no specimen seal is seen affixed on Ext P1 mahazar. It is also contended that list of thondi articles were not prepared and marked in trial and thus the seizure itself is doubtful. It is also contended that the forwarding note by which the sample was forwarded to the chemical analysis lab is not produced and marked. Yet another contention taken is that the sample was sent by the jurisdictional magistrate on 04.02.1997 but the sample reached the chemical examiner only on 05.02.1997 and the said delay and the aspect of the safe custody of the sample bottle is not explained. 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 by 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 ## **Crl.R.P.No.4641 of 2006 6** 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. First contention raised is that the arrest is not proved by producing the arrest memo and arrest intimation. The Apex Court in _**D.K.Basu**_ ’s case supra has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest. This court in _**Baburaj**_ **’** s case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution ## **Crl.R.P.No.4641 of 2006 7** case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore the noncompliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in ## _**Ramankutty v. Excise Inspector, Chelannur Range,**_ _**2013 (3) KLT SN 83**_ which held that noncompliance with mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. In the above background, the independent witnesses who are attesting witnesses to Ext P1 mahazar having turned hostile will also make the prosecution case doubtful. 9. Further contention of the petitioner is that as per the prosecution case incident occurred on 28.08.1996 and the seizure mahazar reached the ## **Crl.R.P.No.4641 of 2006 8** court only on 12.03.1997 and there is a delay of almost 7 months, which is not explained by the prosecution. It is also to be noted that the thondi list is not seen produced and marked during the trial. This court in _**Ramachandran v. State of**_ _**Kerala (2021 (1) KLT 793**_ has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. 10. A perusal of Ext P1 would reveal that no specimen seal has been affixed on the mahazar and further that the forwarding note by which the sample was forwarded to the chemical analyst is not seen produced and marked during trial. 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 ## **Crl.R.P.No.4641 of 2006 9** 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. 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 _**Natarajan 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 (in the present case no forwarding note is marked), 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 in _**Moothedath**_ ## **Crl.R.P.No.4641 of 2006 10** _**Sivadasan v. State of Kerala, 2021 (1) KLT 744**_ **.** 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. 11. A perusal of the documents would reveal that though the sample was sent by the jurisdictional magistrate on 04.02.1997, the sample reached the chemical examiner only 05.02.1997 and the delay occurred and the safe custody of the sample bottle is not explained by the prosecution. In _**Krishnadas v. State of Kerala, 2019 KHC 191**_ **,** this court has held that the unexplained delay in ## **Crl.R.P.No.4641 of 2006 11** between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. **==> picture [394 x 13] intentionally omitted <==** considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the courts 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. sd/- **VIJU ABRAHAM, JUDGE** pm