LIJU, S/O KARUMANPARA MAKKU v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 CRL.REV.PET NO. 1522 OF 2009 ``` ``` AGAINST THE JUDGMENT DATED 14.08.2008 IN CRA 256/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.1, THRISSUR SC 124/2003 OF II ADDITIONAL ASSISTANT SESSIONS JUDGE,THRISSUR ``` ## **`REVISION PETITIONER/ ACCUSED/ APPELLANT:`** ``` LIJU, S/O KARUMANPARA MAKKU, PORKULAM VILLAGE, MANGAD DESOM, THRISSUR DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN ``` ## **`RESPONDENT/ COMPLAINANT / STATE`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY SHRI RENJITH GEORGE, SR.P.P`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ``` ``` 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 2 ``` ## **O R D E R** This revision is at the instance of the accused in S.C No. 124 of 2003 on the file of the II Additional Assistant Sessions Judge, Thrissur, assailing the judgment in Crl. Appeal No. 256 of 2005 on the file of the Additional Sessions Judge, (Adhoc) Fast Track Court No.I, Thrissur, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2.The prosecution case is that, on 26.08.2000 at 12:30 pm, while PW1 - the preventive officer and excise party were on patrol duty, they found the revision petitioner carrying a five litre can containing two litres of illicit arrack in contravention of the provisions of the Abkari Act. He was arrested at the spot and the contraband was seized. After completing all the legal formalities, the contraband and the records along with the revision petitioner were produced before the excise range office. 3.PW5, Excise Inspector registered Ext.P5 crime and occurrence report and thereafter conducted investigation ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 3 ``` and finally laid charge sheet against the petitioner under Sections 8(1) and 8(2) of the Abkari Act. 4. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined Pws 1 to 5, marked Exts.P1 to P10 and identified MO1, to prove its case. 5. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 Cr.P.C and he denied all the incriminating circumstances brought on record,but no defence evidence was adduced. 6. After hearing the rival contentions from either side, and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for one year and fine of Rs.1,00,000/with a default sentence of simple imprisonment for a further period of three months. Aggrieved by the conviction and sentence, the revision ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 4 ``` petitioner preferred Crl. Appeal No.256 of 2005, and the appellate court dismissed the appeal finding no reason to interfere with, against which he has preferred this revision petition. 7. Now, this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner concurrently by the courts below. - 8.Heard learned counsel for the revision petitioner and - learned Public Prosecutor. 9. Learned counsel for the revision petitioner is assailing the judgments pointing out some material defects, which, according to him, are sufficient to vitiate the trial. Ext.P4 is the seizure mahazar prepared by PW1 at the time of detection. That mahazar will not show impression of the specimen seal which is supposed to be the seal affixed on the sample bottle, which contains the sample of the contraband seized, at the place of occurrence. 10. In Ext.P7 forwarding note, the space for the sample ``` CRL.REV.PET NO. 1522 OF 2009 ``` ## **`5`** seal is kept blank. The covering letter addressed to the chemical examiner from Judicial First Class Magistrate Court, Kunnamkulam, contains the specimen seal of the Judicial First Class Magistrate Court. There is no sample seal either in the seizure mahazar or in the forwarding note. 11.The primary duty of the prosecution was to prove before court that the sample taken from the contraband seized from the possession of the revision petitioner at the spot was the sample which reached the chemical examiner’s lab for analysis. In order to prove the identity of the sample, and its tamper proof despatch, the seal affixed in the seizure mahazar and in the sample bottle are relevant and material. When the seal in the seizure mahazar, forwarding note etc., tallies, with the seal in the sample bottle, which later reached the chemical examiner’s lab, we can safely conclude that the sample which reached the chemical examiner’s lab was the sample taken at the spot from the contraband possessed by the revision petitioner. In the absence of such specimen seal in the mahazar as well as in the forwarding note, no such verification is possible. ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 6 ``` 12. In **Moothedath Sivadasan v. State of Kerala** **[2021 (1) KLT 744],** this Court held that, when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult to hold that the sample which reached the Chemical Examiner’s Laboratory was the sample taken from the contraband, allegedly seized from the possession of the accused. 13.In **Bhaskaran v. State of Kerala [2020 KHC 5296]** , this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. Moreover, the detecting officer, who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle, containing the sample. Further the nature of the seal used shall be mentioned in the seizure mahazar also. 14.In **Sasidharan v. State of Kerala [2007 (1) KLT 720]** , this Court held that, the prosecution has a duty to prove that the sample taken from the contraband liquor ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 7 ``` seized from the accused had reached the hands of the chemical examiner, in a foolproof condition. Unless the link evidence is established, the prosecution cannot be held to have brought home the offence alleged. 15.In **Madhavan v. State of Kerala [2019 (4) KLT 18]** , this Court held that, when the prosecution relies upon the report of the chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample, till the same reached the hands of the chemical examiner. 16. In Ext.P7 forwarding note, the name of the excise guard with whom the sample was sent to the chemical examiner’s lab is kept vacant. The chemical analysis report shows that the sample was received through the preventive officer Mr.K.Sasidharan. There occurred delay of two days in reaching the sample before the lab after forwarding it from ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 8 ``` the court. Ext.P8 chemical analysis report shows that the sample was forwarded from the court as per letter dated 25.01.2001, but it reached the lab only on 27.01.2001. No reason or explanation is offered by prosecution to explain the same. ## 17. In **Kumaran V. State of Kerala and others** **[2016 (5) KHC 632]** , this Court held that, when the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, is remaining vacant in the forwarding note, the prosecution has to examine the Thondy Clerk of the Court or Excise Guard concerned, to prove tamper proof despatch of the sample to the laboratory. Absence of such examination, enures to the benefit of the accused. 18.In **Gireesh@Manoj v. State of Kerala [2019 (4) KLT 79]** , this Court held that, in the absence of forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 9 ``` proof condition. 19. In the case on hand, there are sufficient materials to doubt the veracity of the prosecution case. Absence of specimen impression of seal in the seizure mahazar as well as in the forwarding note, are fatal to the prosecution case. The delay in reaching the sample before the lab after sending it from court also stands unexplained. A genuine doubt arises about the sample which reached the chemical examiner’s lab for analysis. So, the report of the analyst that the sample contained 27.49 % of ethyl alcohol is of no consequence as there is no clarity as to whether the sample seized at the spot from the contraband possessed by the revision petitioner was the sample which reached the chemical examiner’s lab. The trial court as well as the appellate court convicted the petitioner without noticing all these facts. So, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court are liable to be set aside. In the result, the impugned judgments of conviction and sentence are set aside. The revision petitioner is found ``` CRL.REV.PET NO. 1522 OF 2009 ``` ``` 10 ``` not guilty of the offence punishable under Sections 8(1) and 8(2) of the Abkari Act and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith. The revision petition stands allowed accordingly. **Sd/SOPHY THOMAS JUDGE** ## **SJ**