Mahesh s/o Narayanan v. State of Kerala

Crl.R.P.No.1504/2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** **Crl.Rev.Pet.No.1504 OF 2005(C)** **AGAINST THE ORDER/JUDGMENT IN CRA 371/2003 DATED 24-05-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA** **AGAINST THE ORDER/JUDGMENT IN SC 684/2001 DATED 19-09-2003 OF SUB COURT, THIRUVALLA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MAHESH S/O NARAYANAN, THENNASSERIAL VEEDU, OLAPHIYATH, VALANJAVATTOM, MURI, KADAPPARA VILLAGE.** **BY ADVS. SRI.M.NARENDRA KUMAR SMT.LEENA KRISHNAN** ## **RESPONDENTS/COMPLAINANTS:** **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, PULIKKEZHU POLICE STATION.** - **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.08.2020, THE COURT ON 07.09.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1504/2005 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1504 of 2005 ----------------------------------------------Dated this the 7[th] day of September, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.684/2001 on the file of the Court of the Assistant Sessions Judge, Thiruvalla. 2. The prosecution case is that, on 11.03.2000, at about 18:30 hours, at the irrigation bund on the side of AlamthuruthiKuthiyathode public road, PW4 Sub Inspector found the petitioner/accused in possession of a plastic bottle containing 1.500 litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. Crl.R.P.No.1504/2005 3 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P6 documents and MO1 to MO3 material objects. No evidence was adduced by the accused. 5. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. The accused filed Crl.A.No.371/2003 before the Court of Session, Pathanamthitta challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard. Perused the records. Crl.R.P.No.1504/2005 4 9. PW4 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW1 is the police constable who was in the police party led by PW4. His evidence corroborates the testimony of PW4 with regard to the material particulars of the occurrence. 10. PW2 and PW3 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They have not given any evidence regarding the occurrence. 11. Ext.P6 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 21.30% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find that the conviction entered against the petitioner cannot be sustained. The reasons are as follows. 13. PW4 has given evidence that he seized the plastic bottle found in the possession of the accused and that, by the Crl.R.P.No.1504/2005 5 taste and smell of the liquid contained in the bottle, he was satisfied that it was arrack. PW4 has also given evidence that he took sample of the liquid in another bottle and sealed the sample bottle and also the bottle containing the residue. He has further deposed that he produced the material objects before the court as per Ext.P3 property list and that he had also prepared and submitted Ext.P5 forwarding note for sending the sample for analysis. 14. The description of the articles given in Ext.P3 property list does not show that the sample bottle and the bottle containing the residue were sealed. Therefore, there is no assurance that the very same sample drawn at the spot of the occurrence by PW4 was produced in the court by PW4 and that the very same sample was forwarded for analysis. 15. Ext.P3 property list shows that the properties, including the sample, were produced in the court on 15.03.2000. The alleged occurrence was on 11.03.2000. Though PW4 has given evidence that the properties were in his safe custody, he has not explained the reason for the delay occurred in producing Crl.R.P.No.1504/2005 6 the properties, including the sample, before the court. 16. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that it is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate forthwith either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari manual. It was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. The unexplained delay in the production of the contraband substance before the court would mean that tampering with the sample cannot be ruled out. Crl.R.P.No.1504/2005 7 17. Ext.P5 is the copy of the forwarding note prepared by PW4 and submitted by him in the court for sending the sample for analysis. It does not bear the specimen impression of the seal which was allegedly affixed by PW4 at the spot of the occurrence on the sample bottle. PW4 has stated on cross-examination that there is no practice of affixing specimen of the seal in the forwarding note. He has also stated that there is no requirement that specimen impression of the seal should be provided in the forwarding note. 18. The statement in Ext.P6 chemical examination report that, the seal on the sample bottle was intact and it tallied with the sample seal provided, is not sufficient to reach a conclusion that the very same sample drawn by PW4 at the spot of the occurrence was forwarded for analysis. Such an assurance would have been possible only if the specimen of the seal which was allegedly affixed by PW4 on the sample bottle was provided in the forwarding note. 19. In **Prakasan v. State of Kerala : 2016 (1) KLD 311** , this Court has held as follows: Crl.R.P.No.1504/2005 8 _“Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused”._ ## 20. In **Rajamma v. State of Kerala : 2014 (1) KLT 506** , it has been held as follows: Crl.R.P.No.1504/2005 9 _“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 affixed in the sample by PW1 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”._ 21. Mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC** Crl.R.P.No.1504/2005 10 ## **3569** ). 22. The trial court as well as the appellate court has not properly considered the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. 23. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr _True Copy_ _P S to Judge_