M. Surendran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 18TH DAY OF MAY 2016/28TH VAISAKHA, 1938 Crl.Rev.Pet.No. 580 of 2009 -------------------------------- AGAINST THE JUDGMENT IN CRA 137/2003 of ADDL.SESSCOURT (ADHOC-II) KASARAGODE DATED 15-01-2008 AGAINST THE JUDGMENT IN SC 744/1999 of COURT OF SESSION, KASARAGOD DIVISION, HOSDRUG DATED 26-03-2003 REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------- M.SURENDRAN, S/O.BHASKARAN, MAIKKALANAM COLONY, BELLA VILLAGE, HOSDURG TALUK. BY ADV. SMT.T.SUDHAMANI RESPONDENT/RESPONDENT/COMPLAINANT: -------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. R.P. No. 580 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of May, 2016 ## **ORDER** The petitioner was convicted by the trial court for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for three months. The appellate court confirmed the conviction passed by the trial court. But, modified the sentence to be simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for three months. The petitioner challenges the correctness, legality or propriety of the conviction and sentence passed against him. 2. Heard the learned counsel appearing for the CRRP 580/09 2 petitioner and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is that the revision petitioner was found in possession of 100 plastic covers each containing 100 ml. of arrack manufactured in Karnataka at about 5.30 p.m. on 25.3.1998. The petitioner was arrested and the contraband was seized. The petitioner and the contraband were produced before the court. After complying with the required legal formalities, the case was committed to the Court of Session. The petitioner was tried for the offence under Section 8(2) of the Abkari Act by the Assistant Sessions Court, Hosdurg. He was found guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder and imposed the sentence on him. The appellate court confirmed the conviction entered by the trial court, but modified the sentence imposed on him. 4. It is the prosecution case that the petitioner was found in possession of arrack at about 5.30 p.m. on CRRP 580/09 3 25.3.1998 and it was seized. But, the contraband was produced before the court only on 1.4.1998. PW1, the Excise Inspector attached to the Excise Circle Office, Hosdurg, is the Detecting Officer in this case. He stated before the court that after detecting the offence, arresting the petitioner and seizing the contraband, he had gone to the Excise Circle Office, Hosdurg, and entrusted the petitioner and the contraband there. PW4, the Excise Preventive Officer in charge of the Excise Inspector, Hosdurg, had produced the petitioner and the contraband before the court. He claimed that he had produced the contraband before the court on 25.3.1998 itself. But, such a claim raised by PW4 proved to be false in the light of other evidence available in this case. PW6 is the Investigating Officer. He stated, based on the entries made in the List of Property, that the contraband was produced before the court on 1.4.1998. The List of Property with which the contraband was produced before the court was not marked in this case. CRRP 580/09 4 The List of Property produced before the court is available among the records. It can be seen from this document that it reached the court only on 1.4.1998. PW4 claimed that he had produced the contraband before the court. He did not say as to when he had received the properties from the Excise Circle Office, Hosdurg. There is absolutely no evidence to show as to when the contraband was handed over to PW4 from the Excise Circle Office, Hosdurg. The official witnesses examined in this case did not say anything with regard to the delivery of the contraband to PW4 from the Excise Circle Office, Hosdurg. PW1 deposed before the court that he was unaware as to what happened to the properties after they were entrusted with the Excise Circle Office, Hosdurg. Whether the contraband including the sample was kept under safe custody after it was entrusted with the Excise Circle Office, Hosdurg? There is no evidence as to whether the contraband including the sample was kept under safe custody. In **Narayani v. Excise** CRRP 580/09 5 ## **Inspector(2002 (3) KLT 725),** a learned single Judge of this Court observed as follows: “....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out................” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit has to be extended to the petitioner. 5. The contraband including the sample was produced before the court only on 1.4.1998 as already found. The excise officials examined in this case have not given any explanation at all for the delay that occurred in producing the contraband including the sample before the court. The CRRP 580/09 6 prosecution has a duty to explain the reason for the delay that occurred in producing the properties before the court. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, the prosecution did not offer any valid reason explaining the delay that occurred in producing the contraband including the sample before the court. Therefore, this unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution case and on that ground alone the petitioner is entitled to an order of acquittal. 6. Ext.P5 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, CRRP 580/09 7 Kozhikode. It is reported in this document that ethyl alcohol was detected in the sample. It is also certified in Ext.P5 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottle by PW1? It is stated in Ext.P1 Seizure Mahazar under which the contraband was seized by PW1 that the contents of three packets of arrack were taken as sample in a 375 ml. bottle and sealed that sample bottle. PW1 deposed also that the sample bottle was so sealed. A copy of the Forwarding Note was not marked in this case. But, a copy of the Forwarding Note is available among the records. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed in the copy of the Forwarding Note. Whether the sample seal was affixed in the original Forwarding Note sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the CRRP 580/09 8 Forwarding Note, it has to be presumed that such sample seal was not affixed in the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the samples drawn from the bulk of the contraband, details of the case and the space for providing the sample impression of the seal affixed on the samples taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. The excise officials examined in this case did not have a case that a sample seal was affixed in the original Forwarding Note sent to the CRRP 580/09 9 Chemical Examiner for the purpose of comparison with the seal appearing on the sample bottle. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the petitioner had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the petitioner in this case. 7. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows : “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been CRRP 580/09 10 affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” The Division Bench of this Court in **Ravi v. State of Kerala (supra)** has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held CRRP 580/09 11 that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P5 Certificate of Chemical Analysis is rendered a doubtful one entitling the petitioner to the benefit of doubt. 8. For the foregoing reasons, the conviction of the petitioner by the trial court for the offence under Section 8 (1) and (2) of the Abkari Act and confirmed by the appellate court is liable to be set aside. Similarly, the sentence imposed on the petitioner is also liable to be set aside. The petitioner is entitled to an order of acquittal of the offence under Section 8(1) and (2) of the Abkari Act. 9. In the result, the conviction and sentence, as aforesaid, passed by the courts below against the petitioner are set aside. He is acquitted of the offence under Section 8 CRRP 580/09 12 (1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This criminal revision petition is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRRP 580/09 13