Muraleedharan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 64/2008 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, ALAPPUZHA ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 313/2006 OF PRINCIPAL ASSISTANT ``` ``` SESSIONS COURT, ALAPPUZHA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` MURALEEDHARAN, S/O RAGHAVAN MANATHRAYIL HOUSE, PATHIYUR VILLAGE, KARTHIKAPPALLY TALUK. ``` ``` BY ADV SRI.S.SREEKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI. RENITH GEORGE - SR. PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ``` ``` ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 2 ``` ## **ORDER** This revision petition is at the instance of the accused in S.C. No.313 of 2006 on the file of Principal Assistant Sessions Judge, Alappuzha, assailing the judgment in Crl.Appeal No.64 of 2008 on the file of Additional Sessions Judge, (Fast Track Court-II), Alappuzha, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 17.06.2003 at 6.00 p.m., PW1-the Excise Inspector and party, while on patrol duty, found the revision petitioner transporting three litres of arrack in a can, in front of the house of Mr. Gopinathan at Pathiyoor Village, Karthikappally Taluk. The revision petitioner was arrested and the contraband was seized. After completing all the legal formalities like sampling, sealing etc. the revision petitioner along with the records, and the articles seized were produced before the excise range office and thereafter, before the jurisdictional Magistrate court. PW5 investigated the case and laid ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 3 ``` charge sheet against the revision petitioner under Sections 8(1), 8(2) and 55(a) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which he pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined, Exts.P1 to P9 were marked and MO1 was identified from the side of the prosecution, to prove its case. 4. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for a period of six months and fine of Rs.1 lakh, and in default to undergo ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 4 ``` simple imprisonment for three months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.64 of 2008. The appellate court, on reappreciating the facts and evidence, found nothing to interfere with the conviction and sentence imposed by the trial court, and hence, the appeal was dismissed, upholding the conviction and sentence, against which he has preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. PW1-the Excise Inspector and PW3-the excise official, who was accompanying PW1 in the patrolling party, gave testimony in tune with the prosecution case. PWs.2 ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 5 ``` and 4, the independent witnesses, turned hostile to the prosecution. 10. Learned counsel for the revision petitioner is assailing the judgments of conviction and sentence pointing out the material irregularities in the prosecution case, which, according to him, are sufficient to vitiate the trial. First of all, he pointed out that, there was no specimen impression of the seal in Ext.P3 seizure mahazar. The specimen impression of the seal in the sample bottle which reached the lab, must be the very same sample affixed in the seizure mahazar, prepared at the place of detection. So, it is a guarantee to ensure the genuineness of the sample which reached the lab. When no specimen impression of the seal is seen in the seizure mahazar, a genuine doubt may arise as to whether the seal in the sample bottle was affixed at the place of occurrence or not. 11. In **Moothedath Sivadasan v. State of Kerala** (2021 (1) KLT 744), this Court held that, when the specimen impression of the seal affixed on the seizure ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 6 ``` mahazar was not produced before the court, it was difficult to hold that, the sample which reached the chemical examiner’s lab was the sample taken from the contraband, allegedly seized from the possession of the accused. 12. Paragraph 12 of the decision **Moothedath Sivadasan** (2021 (1) KLT 744) reads thus; “12. No specimen impression of seal is seen affixed on Ext P1 seizure mahazar prepared by PW4. Further specimen impression of sample seal was not produced as an Exhibit in this case. Under the circumstances, it is very difficult to hold that the sample of the contraband allegedly seized from the accused has, in fact, reached the chemical examiner for analysis. It appears from Ext P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml of clear and colourless liquid alleged to be spirit involved in Crime No 146/2000 of Iritty Police Station were received by the chemical examiner for chemical analysis. It is further stated in Ext P8 that the seals on the bottles were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. There is nothing on record to indicate that the sample seal was affixed in Ext P1 seizure mahazar. Thus, there is absolutely no evidence to establish that the prosecution has proved the sample seal or specimen impression of the seal alleged to have been affixed on the sample by ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 7 ``` PW4. In Rajamma v. State of Kerala (2014 (1) KLT 506] this Court held that 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 accused.” 13. In **Bhaskaran v. State of Kerala** [2020 KHC 5296], this Court held that, the specimen of the 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. Moreover, the detecting officer, who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the nature of the seal used shall be mentioned in the seizure mahazar also. 14. In the case on hand, there is no specimen impression of the seal in the seizure mahazar, and the nature of the seal affixed, also will not find a place in the mahazar. No explanation, whatsoever is forthcoming from the prosecution for not affixing the specimen seal in the ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 8 ``` seizure mahazar. The prosecution was duty bound to prove that, it was the sample taken from the contraband liquor seized from the revision petitioner, reached the hands of the chemical examiner in a foolproof condition. In the absence of specimen seal in the mahazar, a genuine doubt arise as to the correctness of the sample, which reached the chemical lab for analysis, and the revision petitioner is entitled to get the benefit of that doubt. 15. Learned counsel for the revision petitioner pointed out that, though the occurrence was on 17.06.2003, the witnesses were seen questioned by the investigating officer only in April 2005, i.e. after about two years. There is no reason for, not questioning of the witnesses immediately after the incident. The investigation was completed and final report was filed with a delay of about two years, and the prosecution failed to explain satisfactorily the reason for that delay. 16. In the decision **Moothedath Sivadasan** (2021 (1) KLT 744), this Court held that, as per Section 50 of the ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 9 ``` Abkari Act, every investigation into the offences under the Abkari Act shall be completed without unnecessary delay. If there is delay, the prosecution is bound to explain it satisfactorily, or else, the benefit of that doubt will go to the revision petitioner. [See **Kumaran P. v. State of Kerala and another** (2016 (4) KLT 718)]. 17. The absence of specimen impression of the seal in Ext.P3 seizure mahazar and the unexplained delay of two years in completing the investigation are sufficient to doubt the genuineness of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. 18. For the reasons stated above, it has to be held that the prosecution failed to prove its case beyond reasonable doubt. The conviction and sentence imposed by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act, without noticing these material aspects are liable to be set aside. 19. In the result, the conviction and sentence ``` CRL.REV.PET NO. 4004 OF 2008 ``` ``` 10 ``` imposed on the revision petitioner by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act are hereby set aside. He is found not guilty of the offences alleged, and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition stands allowed accordingly. **Sd/-** **SOPHY THOMAS JUDGE** LU