MOHANAN, S/O.GOPI, KOCHUKONATHU VEEDU, KOTTOOR, KOKKUDI MURI, MANNOORKARA VILLAGE, NEDUMANGAD TALUK. v. THE STATE OF KERALA

``` CRL.RP NO. 230/2006 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, ``` ``` 1943 ``` ## **`CRL.REV.PET NO. 230 OF 2006`** ``` AGAINST THE JUDGMENT IN CRL.A NO.74/1999 OF THE ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC II), THIRUVANANTHAPURAM CC 613/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`NEDUMANGAD`** ## **`REVISION PETITIONER/APPELLANT:`** ``` MOHANAN, S/O.GOPI, KOCHUKONATHU VEEDU, KOTTOOR, KOKKUDI MURI, MANNOORKARA VILLAGE, NEDUMANGAD TALUK. ``` ``` BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR ``` ## **`RESPONDENT/RESPONDENT:`** ``` THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` SMT M K PUSHPALATHA,PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.RP NO. 230/2006 ``` ``` 2 ``` ## O R D E R This Criminal Revision Petition is directed against the judgment dated 26.6.2003 in Crl.A No.74/1999 on the file of the Additional Sessions Court, Fast Track (Adhoc) No.II, Thiruvananthapuram (for short ‘the appellate court), confirming the judgment dated 16.2.1999 in C.C.No.613/1997 on the file of the Judicial First Class Magistrate Court, Nedumangad (for short ‘the trial court’). 2. The revision petitioner/accused faced trial for an offence punishable under Section 58 of the Abkari Act. 3. The prosecution case in short is that on 11.1.1996 at 4 pm., the accused was found carrying 5 litres of illicit arrack in a plastic can in a waiting shed on the side of the Aryanad-Kuttichal road at Pallikkonam, in contravention of the provisions of the Abkari Act and Rules. 4. On receipt of summons, the accused appeared at the court below. After hearing both sides, the charge under Section ``` CRL.RP NO. 230/2006 ``` ``` 3 ``` 58 of the Abkari Act was framed against the accused. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P6. MO1 was identified. 6. Considering the evidence on record, the trial court found the accused guilty for the offence punishable under Section 58 of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.2,500/-, in default to suffer simple imprisonment for a period of one month. In appeal, the appellate court confirmed the conviction and sentence passed by the trial court. Challenging the conviction and sentence passed by the courts below, the accused preferred this revision. 7. I have heard Sri.T.A.Unnikrishnan, the learned counsel for the revision petitioner and Smt.M.K.Pushpalatha, the learned Public Prosecutor. ``` CRL.RP NO. 230/2006 ``` ``` 4 ``` 8. The learned counsel appearing for the revision petitioner assailed the impugned conviction and sentence passed against the accused mainly on four grounds. (i) The seizure mahazar does not contain the sample seal or the description of the seal used. (ii) There is no seal in the forwarding note. (iii) No arrest memo is produced. (iv) There is a delay of more than four months in producing the seized contraband substance and the sample drawn from it at the court. 9. The first contention canvassed by the learned counsel for the revision petitioner is regarding the absence of the seal in the mahazar. This Court in K . Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen 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. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 mahazar would show that it does ``` CRL.RP NO. 230/2006 ``` ``` 5 ``` not contain the sample seal or the description of the seal used. 10. The next contention canvassed by the learned counsel for the revision petitioner is regarding the absence of seal in the forwarding note. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) has held that the forwarding note must contain the specimen of the seal affixed on the sample. The forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. In the absence of seal in the forwarding note, it cannot not 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 proof condition. 11. The third point canvassed by the learned counsel for the appellant is the non production of the arrest memo. Learned counsel for the appellant cited a decision of this court in ``` CRL.RP NO. 230/2006 ``` ``` 6 ``` Ramankutty v. Excise Inspector (2013 (3) KHC 308) in support of his submission that non production of arrest memo is fatal to the prosecution case. It was held that arrest memo is a crucial document to be prepared at the time of arrest and non production thereof is fatal to the prosecution. To prove the arrest, the arrest memo is a vital document to be produced by the prosecution. The arrest memo is not seen produced in this case 12. The last point canvassed by the learned counsel appearing for the revision petitioner is regarding the unexplained delay in producing the contraband article at the court. I find some force in the said argument. It is settled that the unexplained delay in producing the contraband substance and the samples drawn from it at the court is fatal to the prosecution case. The Apex Court in State of Uttar Pradesh v. Hansraj @ Hansu [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has ``` CRL.RP NO. 230/2006 ``` ``` 7 ``` to adduce evidence to show as to how and in what condition the same were preserved at the police station. A Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in Ramankutty v. Excise Inspector [2013 (3) KHC 308] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in Ravi v. State [2018 (4) KLT Online 2056]. Relying on the Division Bench's decision in Ravi (supra), recently, another Single Bench of this Court in Anilkumar v. State (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal. ``` CRL.RP NO. 230/2006 ``` ``` 8 ``` 13. Coming to the facts of the case the detection was on 11.1.1996. However, the seized contraband substance and the sample drawn from it were produced in the court only on 20.5.1996. Thus, there is a delay of four months and nine days. There was absolutely no evidence to show as to how and in what condition the contraband articles were kept. When there is a delay in producing the seized contraband substance and the sample drawn from it at the court, the prosecution has not only to explain the delay satisfactorily but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution has failed to satisfy these twin conditions in this case. In these circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the very same sample taken from the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. For these reasons, I hold that this is a fit case where the discretionary powers vested with this Court under Section 397 r/w 401 of ``` CRL.RP NO. 230/2006 ``` ``` 9 ``` Cr.P.C could be exercised. 14. The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the court below cannot be sustained. In the result, the Criminal Revision Petition stands allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The revision petitioner is found not guilty of the offence charged against him and accordingly he is acquitted. His bail bond is cancelled. ## DR. KAUSER EDAPPAGATH JUDGE ab