Murukayya v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 ``` ## **`CRL.REV.PET NO. 3153 OF 2009`** ``` AGAINST THE JUDGMENT IN CRA 41/2008 OF SESSIONS COURT,THODUPUZHA SC 541/2005 OF ASST. SESSIONS COURT,KATTAPPANA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED`** ``` MURUKAYYA, S/O.MADASWAMI, CHINNAVILA HOUSE, II DIVISION LAYAM, CHEENTHALAR ESTATE, OTTAMARAM KARA, UPPUTHARA VILLAGE. ``` ``` BY ADV SRI.GRASHIOUS KURIAKOSE ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE – STATION HOUSE OFFICER UPPUTHARA POLICE STATION ,REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY PUBLIC PROSECUTOR SRI.M.C.ASHI`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.3153 of 2009 2 ## **VIJU ABRAHAM,J .............................................. Crl.R.P.No.3153 of 2009 .............................................. Dated this the 6[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in S.C.No.541 of 2005 on the file of the Assistant Sessions Court, Kattappana, registered alleging commission of offences punishable under Sections 55(g), 8(1) and 8(2) of the Kerala Abkari Act. 2. The prosecution case is that on 05.09.2003 at about 6.15 p.m., the accused was found in possession of 1.5 litres of arrack and on information given by him 35 litres of wash and implements for arrack distillation were seized and thereby the revision petitioner/accused has committed the abovesaid offences. 3. The prosecution in support of their case examined PW1 to PW4 and marked Exts.P1 to P7 and identified MO1 to MO5. 4 **.** The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months, under Sections 8(1) and 8(2) of the Abkari Act and also to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a Crl.RP No.3153 of 2009 3 further period of three months, under Section 55(g) of the Abkari Act. Though an appeal was preferred as Crl.Appeal No.41 of 2008 before the Sessions Court, Thodupuzha, the same was dismissed confirming the conviction and sentence imposed by the trial court. 5. Learned counsel for the revision petitioner has raised the following contentions. The occurrence was on 05.09.2003 and the alleged contraband was produced before the court only on 12.09.2003 which is almost after a delay of 7 days, which is not explained by the prosecution. On the basis of the same, the learned counsel would contend that it is fatal to the prosecution case and the accused is entitled for the benefit of doubt. A perusal of Ext.P5 property list also would reveal that the alleged contraband reached the court only on 12.09.2003. The further contention raised by the petitioner is that there is no seal affixed on any of the material objects except MO1. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Crl.RP No.3153 of 2009 4 Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. As regards the first contention regarding delay, it is the case of the revision petitioner that though the occurrence was on 05.09.2003 and the alleged contraband was produced before the court only on 12.09.2003 which is almost after a delay of 7 days, which is not explained by the prosecution. In **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** this court has held in paragraph 11 as follows: _“11. It is also to be noted that even though the contraband article was seized on 7.1.2006, the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is only for one day, particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence regarding the safe custody of the_ Crl.RP No.3153 of 2009 5 _sample till its production before the court.”_ This court in **Ramachandran v. State of Kerala (2021 (1) KLT 793** has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. 8. The further contention raised by the petitioner is that there is no seal affixed on any of the material objects except MO1 and PW4, the investigating officer in his evidence has admitted that no seal is seen affixed on MO2 and MO3. A perusal of Ext.P3 mahazar also would show that no seal or slip was affixed on it. To which the learned Public Prosecutor would submit that that may not be so material inasmuch as in MO1 a seal has been affixed and labelled. Learned counsel for the revision petitioner would contend that without a seal or label being affixed, the identification of the material objects before the court is doubtful. Learned counsel for the revision petitioner further submits that the mahazar witnesses who are independent witnesses have turned hostile and therefore it is the duty of the prosecution to prove the case beyond reasonable doubt which has not been done in the present case. In **Sumathy v. State of Kerala, 2016 (4) KLT SN 37** the court held in paragraph 7 as follows: _“7. Here, immediately after the arrest of the appellant, the contraband articles were seized at the place of occurrence,_ Crl.RP No.3153 of 2009 6 _after taking sample. They failed to affix label in MO1. Affixing label in the contraband articles and obtaining signature in the presence of the independent witnesses ensure the compliance of the procedure provided in the Abkari Act and Kerala Excise Manual for Crime-Detection, enquiry, trials. The signatures should be secured in the label and seal the articles in the presence of the independent witnesses which will fasten the credibility of the evidence of the Excise Officials. In this case, PW2 admitted that no label was found in the seized articles when he was examined before court. When there is no label in the seized articles and there is violation of the procedures provided in the Kerala Excise Manual, more independent evidence is necessary to prove the seizure. Therefore, it is necessary to obtain the signature of the witnesses, the accused and the officer shall put his signature in the label affixed in the articles. When there is no signature of the witnesses, the accused and the officer in the label, no credibility can be fastened upon such evidence.”_ ## In **Sasidharan v. State of Kerala, 2007 (1) KLT 720,** this court in paragraph 10 of the judgment held as follows: _“10. There is yet another infirmity in the evidence. While according to PWs 1 and 2 and the recitals in Ext.P1 mahazar, the seized can was sealed and labelled, the property list does not show that the can which was produced in court was sealed. PW4 has admitted that in Ext.P4 filed by him in court there is no mention that the can which was seized was either sealed or labelled. M.O.1 can which was produced in court from the custody of PW4 was an empty can on which there was no seal or label at all. Every such can will look alike and it is really surprising that PWs.1 and 2 who were testifying before court after 5 years of detection had no difficulty to identify M.O.1 as the can which was allegedly seized from the appellant. It is not possible to accept the identification of the can, by such officers who are not possessed of super-human powers of recollection.”_ ## This court in **Vijayan v. State of Kerala, 2021 (5) KLT 321,** has Crl.RP No.3153 of 2009 7 enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note. This court in **Sasidharan’s** case cited supra has also considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition. Relying on the judgment of the Apex Court in **State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314** , this court in **Sasidharan** ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The Apex Court in **Vijay Pandey v. State of U.P., AIR 2019 SC 3569** has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. Crl.RP No.3153 of 2009 8 9. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/-** **VIJU ABRAHAM JUDGE** cks