Mohonan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942** **Crl.Rev.Pet.No.4244 OF 2007** **AGAINST THE JUDGMENT, CONVICTION AND SENTENCE IN SC NO.510/2003 OF THE COURT OF THE ASSISTANT SESSIONS JUDGE, MAVELIKKARA, DATED 23.03.2006 AS CONFIRMED BY THE JUDGMENT, CONVICTION AND SENTENCE IN CRL.APPEAL NO.309/2006 DATED 30-10-2007 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC), MAVELIKKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MOHANAN, S/O.GOVINDAN, VADAKKE THENGINALIL VEEDU, VETTIYAR,, MAVELIKKARA.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.07.2020, THE COURT ON 07.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.4244/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.4244 of 2007 -------------------------------------Dated this the 7[th] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.510/2003 on the file of the Court of the Assistant Sessions Judge, Mavelikkara. 2. The prosecution case is that, on 25.10.2001, at about 17.30 hours, at the public road near Pulinchuvadu Junction in Vettiyal Village, PW3 Preventive Officer found the petitioner/accused having in his possession a can containing ten litres of spirit. 3. The trial court framed charge against the accused for the offences punishable under Sections 8(1) read with 8(2) and 55(a) of the Abkari Act. The petitioner/accused pleaded not guilty to the offences and he claimed to be tried. Crl.R.P.No.4244/2007 3 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P7 documents and MO1 material object. No evidence was adduced by the accused. 5. The trial court found the petitioner guilty of only the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. 6. The petitioner filed Crl.A.No.309/2006 before the Court of Session, 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.4244/2007 4 9. PW3 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW1 is another Preventive Officer who was in the excise party led by PW3. His evidence corroborates the testimony of PW3 with regard to the material particulars of the occurrence. 10. PW2 is the independent witness examined by the prosecution. He did not support the prosecution case. He denied having seen the incident. He even denied the signature in Ext.P1 seizure mahazar. 11. Ext.P7 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 94.50% by volume of ethyl alcohol and the liquid was rectified spirit. 12. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 13. PW3 has given evidence that he took sample from the liquid contained in the can and sealed the sample bottle and also Crl.R.P.No.4244/2007 5 the can containing the residue and affixed label, bearing his signature and the signature of the accused and the witnesses, on the sample bottle and the can. There is also a specific recital to that effect in Ext.P1 seizure mahazar. PW3 has also given evidence that he entrusted the records and the articles seized with the Excise Inspector (PW4). 14. PW4 Excise Inspector has given evidence that the accused and the articles and the records were produced by PW3 before him at 08.00 hours on 26.10.2001. He has also given evidence that he registered Ext.P5 crime and occurrence report and produced the material objects before the court as per Ext.P6 property list. 15. The description of the can and the sample bottle given in Ext.P5 crime and occurrence report does not show that there was any label on them. The description of the properties given in Ext.P6 property list also does not show that there was any label on the can and the sample bottle. Therefore, there is no assurance that the very same can allegedly seized by PW3 from the possession of the accused and the very same sample Crl.R.P.No.4244/2007 6 allegedly drawn by PW3 at the spot of the occurrence were produced by him before the Excise Inspector (PW4). There is also no assurance that the very same can and the very same sample were produced before the court as per Ext.P6 property list. 16. There is also no reliable evidence to find that the very same sample allegedly drawn by PW3 at the spot of the occurrence was forwarded for chemical analysis. PW4 Excise Inspector has given evidence that he prepared requisition for sending the sample for chemical analysis and submitted it before the court. Copy of no such requisition or forwarding note is seen marked in the case. Therefore, there is no legal evidence to find that the very same sample allegedly drawn by PW3 at the spot of the occurrence was forwarded for chemical analysis. 17. The forwarding note prepared by the investigating officer for sending the sample for chemical examination 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 Crl.R.P.No.4244/2007 7 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** ). 18. PW3 has given evidence that it was his personal seal which was affixed by him on the sample bottle and the can. There is no such recital in Ext.P1 seizure mahazar. The specimen of the personal seal of PW3 is also not seen affixed on Ext.P1 mahazar. In the absence of the forwarding note in evidence, it cannot also be ascertained whether the specimen of the seal which was affixed by PW3 on the sample bottle and the can was there in the forwarding note. 19. There is also doubt as to whether the sample and the can containing the residue were produced before the court without any delay. Ext.P6 property list bears the endorsement “accept” by the learned Magistrate with the date 01.11.2001. Crl.R.P.No.4244/2007 8 The occurrence was on 25.10.2001. PW4 has given evidence that he had produced the material objects before the Magistrate on 26.10.2001. Of course, Ext.P6 property list bears an initial with the date 26.10.2001. But, there is another specific endorsement on it to the effect that it was on 01.11.2001 that the material objects were produced before the court. Even assuming that the properties were produced by PW4 before the Magistrate on 26.10.2001 and the learned Magistrate had directed PW4 to produce the properties before the court, even then, the delay of five days in producing the sample and the can before the court is not satisfactorily explained by PW4. He would say that the properties were in his custody till they were produced before the court. However, there is no evidence as to in what manner and in what condition the sample was kept at the excise office. 20. When there is delay in producing the samples of the contraband substance in the court and when the evidence is that they were kept in the police station, the prosecution has to adduce evidence to show as to how and in what conditions the Crl.R.P.No.4244/2007 9 samples were preserved at the police station (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). The same principle applies when the sample is kept at the excise office. ## 21. 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 co-related"._ 22. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to Crl.R.P.No.4244/2007 10 prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 23. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. 24. On a perusal of the judgment of the trial court, it is seen that charge was framed against the petitioner/accused for the offences punishable under Sections 8(1) read with 8(2) and 55(a) of the Abkari Act. Though the petitioner was convicted by the trial court for the offence under Section 55(a) of the Abkari Act, nothing is mentioned in the judgment with regard to the charge framed against him for the offence under Section 8(1) Crl.R.P.No.4244/2007 11 read with 8(2) of the Abkari Act. Since possession of spirit cannot be an offence under Section 8(1) of the Abkari Act, the petitioner/accused is entitled to be acquitted in respect of the offence punishable under Section 8(2) of the Abkari Act also. 25. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence punishable under Section 55(a) 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 also the offence under Section 8(1) read with 8(2) of the Abkari Act 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 PS to Judge