Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942** **Crl.Rev.Pet.No.784 OF 2005(C)** **AGAINST THE JUDGMENT IN CRA 330/2001 DATED 13-12-2004 OF THE COURT OF SESSION, KOZHIKODE** **AGAINST THE JUDGMENT IN SC 320/1999 DATED 31-05-2001 OF ASSISTANT SESSIONS JUDGE, VADAKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MATHEW, AGED 55 YEARS S/O AUGUSTY, PONMALAKUNNUMMEL HOUSE, VILANGAD AMSOM DESOM, VADAKARA TALUK.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA THROUGH THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, NADAPURAM, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR, SRI.SANTHOSH PETER** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.08.2020, THE COURT ON 13.08.2020 PASSED THE FOLLOWING:** **Crl. R.P No. 784 of 2005** **2** ## **R. NARAYANA PISHARADI, J** ## **------------------------------------------Crl.R.P.No.784 of 2005** **--------------------------------------------** Dated this the 13[th] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C. No. 320/1999 on the file of the Court of the Assistant Sessions Judge, Vatakara. 2. The prosecution case is that, on 10.03.1998, at about 08:35 hours, when PW1 Excise Inspector intercepted and searched the bus KL-13-A-1155, he saw a plastic bag which contained four bottles, each having the capacity of 500 ml, of Indian Made Foreign Liquor in the possession of the petitioner/accused who was a passenger of the bus. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) read with Rule 9 of the Foreign Liquor Rules. The accused pleaded not guilty to the offence and he claimed to be tried. **Crl. R.P No. 784 of 2005** **3** 4. The prosecution examined PW1 to PW3 and marked Exts.P1 to P6 documents and MO1 series and MO2 material objects. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of two years and 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 petitioner filed Crl.A.No.330/2001 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to simple imprisonment for a period of one year. 7. Aggrieved by the concurrent verdicts of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. **Crl. R.P No. 784 of 2005** **4** 8. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. PW1 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. 10. PW2 and PW3 are the independent witnesses examined by the prosecution. PW2 was the conductor and PW3 was the driver of the bus. Though PW2 had at first stated in examination-in-chief that he saw foreign liquor being seized from the possession of the accused who was travelling in the bus, he subsequently changed his version and denied having seen seizure of any liquor from the possession of the accused. PW3 also denied having seen the excise party seizing any liquor from the possession of the accused. 11. Ext.P6 is the chemical examination report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 42.26% by volume of ethyl alcohol. 12. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is totally insufficient to prove that the liquid allegedly seized from the possession of the petitioner was liquor and also to prove that Ext.P6 chemical examination report relates to the sample allegedly taken by PW1 at the spot of **Crl. R.P No. 784 of 2005** **5** the occurrence. 13. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find that there is merit in the contention of the learned counsel for the petitioner and that the conviction entered against the petitioner cannot be sustained. The reasons are as follows. 14. PW1 has given evidence regarding the seizure of four bottles of liquor from the possession of the accused. However, there is no evidence that the very same bottles of liquor allegedly seized from the possession of the accused were produced before the court. The property list which should have been prepared by PW1 for producing the material objects in the court was not marked in evidence. Therefore, there is no evidence to find that the very same bottles of liquor, including the sample, allegedly seized from the possession of the accused were produced before the court. PW1 has not even given any oral evidence that he produced the properties before the court. 15. The seizure mahazar and the search list allegedly prepared by PW1 at the spot of the occurrence were produced in the court only on 28.05.1998. The alleged occurrence was on 10.03.1998. The reason for the delay in producing the documents **Crl. R.P No. 784 of 2005** **6** before the court is not explained by the prosecution. 16. PW1 has not given any evidence that he had prepared any requisition or forwarding note for sending the sample for analysis and submitted it before the court. The forwarding note which should have been prepared by PW1 for sending the sample for chemical analysis was not marked in evidence. 17. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the 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 the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). Absence of the forwarding note in evidence means absence of evidence connecting the sample of the liquid allegedly seized from the possession of the accused and the sample that tested in the laboratory. 18. In the aforesaid circumstances, there is no assurance that the very same sample allegedly taken by PW1 at the spot of **Crl. R.P No. 784 of 2005** **7** the occurrence was produced before the court and the very same sample was forwarded for analysis. It follows that there is also no assurance that Ext.P6 chemical analysis report relates to the very same sample allegedly seized by PW1 from the possession of the accused. ## 19. In **Vijay Pandey v. State of Uttar Pradesh : AIR** ## **2019 SC 3569** , the Supreme Court has held as follows: "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be corelated". 20. The above mentioned vital aspects have not been taken into consideration by the courts below while appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner/accused cannot be sustained. 21. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused, under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules, are **Crl. R.P No. 784 of 2005** **8** 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. ## **R. NARAYANA PISHARADI JUDGE** lsn True Copy PA to Judge