Nazar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938 Crl.Rev.Pet.No. 3472 of 2009 --------------------------------- AGAINST THE JUDGMENT IN CRA 950/2007 of IInd ADDL. SESSIONS COURT, KOZHIKODE, DATED 10-08-2009 AGAINST THE JUDGMENT IN SC 212/2004 of PRL.ASSISTANT SESSIONS COURT, KOZHIKODE DATED 25-10-2007 REVISION PETITIONER/IST APPELLANT/IST ACCUSED: ------------------------------------------------ NAZAR,AGED 34 YEARS,S/O.MUHAMMED, EROOL KUNNUMMAL, KEDAVOOR AMSOM,POONOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT/RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.R.P. No. 3472 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 21[st] day of June, 2016 ## **ORDER** The petitioner was convicted by the trial court for the offence under Section 8(1) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. The petitioner filed appeal challenging the conviction and sentence passed by the trial court. The appellate court confirmed the conviction of the petitioner for the offence under Section 8(1) of the Abkari Act. But the sentence awarded by the trial court was modified and sentenced the petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- and, in CRRP 3472/2009 2 default of payment of fine, to undergo simple imprisonment for six months. Challenging the correctness, legality or propriety of the conviction and sentence, the petitioner has preferred this revision petition. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: The petitioner is the first accused in the case. The petitioner and the second accused were found possessing 70 litres of illicit arrack contained in two jerrycans kept in a jeep driven by the petitioner at about 11.30 p.m. on 5.8.2002. They were arrested then and there by PW1, the Preventive Officer attached to Onam Festival 2002 Intelligence Squad, Kozhikode, preparing Arrest Memos. The contraband as well as the jeep were seized by PW1 under Ext.P2 Seizure Mahazar. He had drawn two samples of 200 ml. each from each of the jerrycans in two separate 375 ml. bottles. The CRRP 3472/2009 3 samples were sealed. Thereafter, PW1 and his party returned to their office and handed over the accused and the contraband to PW4, the Excise Inspector, Excise Range Office, Kozhikode. He had registered a case in respect of the occurrence. Ext.P5 is the Crime and Occurrence Report thus prepared by PW4. He had produced the accused and the properties before the Judicial First Class Magistrate's Court-I, Kozhikode. Ext.P6 is the List of Property. Ext.P7 is a copy of the Forwarding Note. The investigation of the case was conducted by PW6, the Excise Inspector, Excise Range Office, Kozhikode. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate committed the case to the Court of Session, Kozhikode, and, from there, it was made over to the Principal Assistant Sessions Court, Kozhikode. The Principal Assistant Sessions Court, Kozhikode, framed a CRRP 3472/2009 4 charge against the accused alleging the offence under Section 8(1) of the Abkari Act. The accused pleaded not guilty. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P9 and MO.1 series on their side. The accused were questioned under Section 313 of Cr.P.C. They denied the incriminating circumstances shown against them. The defence has not adduced any evidence. The trial court, after considering the matter, found both the accused guilty of the offence under Section 8(1) of the Abkari Act and convicted them thereunder. They were heard on the question of sentence and imposed the sentence on them. The appellate court confirmed the conviction entered against them, but modified the sentence. 5. PW1 is the Detecting Officer. PW2 is an Excise Guard claimed to have accompanied PW1 at the time of detection of the offence. Both of them, by and large, deposed in support of the prosecution case. CWs. 3 and 4 were cited by the prosecution as independent occurrence CRRP 3472/2009 5 witnesses for proving the prosecution version of occurrence. CW4 was examined as PW5. He has not supported the prosecution case. He was declared hostile to the prosecution. CW3 was not examined by the prosecution. 6. Ext.P8 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. It is certified in this document that ethyl alcohol was detected in both the samples and the samples of liquid contained 48.06% and 47.96% by volume of ethyl alcohol. It is also certified in Ext.P8 that the seals on the bottles were intact and found tallied with the sample seal provided by the court. Ext.P7 is a copy of the Forwarding Note produced by the Investigating Agency before the court. This Forwarding Note prepared by the Excise Inspector, Kozhikode Range, is addressed to the Joint Chemical Examiner to Government, Regional Chemical Examiner's Laboratory, Medical College, Kozhikode. Two sample seals of the excise officer are seen affixed in the space provided CRRP 3472/2009 6 for affixing the same in Ext.P7. It is signed by the Excise Inspector, Kozhikode Range, and counter signed by the Judicial First Class Magistrate-I, Kozhikode. A sample of the seal affixed on the sample bottles is seen affixed in Ext.P2 Seizure Mahazar. Out of the two sample impressions affixed in Ext.P7, one resembles to the specimen seal affixed in Ext.P2 Seizure Mahazar and the other is bigger in size and slightly different in appearance. It can also be seen from Ext.P7 that a sample seal of the court is also affixed in the space provided for affixing the sample seal. It is certified in Ext.P8 Certificate of Chemical Analysis that the seals on the bottles were intact and found tallied with the sample seal provided by the court. So, it can reasonably be presumed that the comparison of the seals appeared on the sample bottles made by the Chemical Examiner was with the sample of the seal provided from the court, i.e. the sample seal of the seal affixed from the court and not with the sample seal affixed by the investigating agency. A CRRP 3472/2009 7 comparison of the seal appearing on the sample bottles with the seal provided from the court will not lead to the conclusion that the Chemical Examiner really examined the samples drawn by the Abkai Officer from the contraband at the time of detecting the offence. In order to make sure that the Chemical Examiner examined really the samples drawn from the contraband allegedly seized from the accused, a comparison of the seal appearing on the sample bottles with the sample of the seal provided by the investigating agency is required. That was not done in this case. In these circumstances, there is no assurance that the samples subjected to chemical analysis were really the samples of the contraband allegedly seized from the accused. Such an assurance is possible only when the seal appearing on the sample bottle was compared with the sample of that seal provided by the investigating agency. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined CRRP 3472/2009 8 really the samples taken from the bulk allegedly seized from the accused in this case. This Court in **Rajamma v. State of Kerala (2014 (1) KLT 506)** has held as follows : “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. 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 appellant who is a lady.” CRRP 3472/2009 9 A Division Bench of this Court in **Ravi v. State of Kerala (2011(3)KLT 353)** has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P8 Certificate of Chemical Analysis is rendered a doubtful one entitling the petitioner to the benefit of doubt. **7.** For the foregoing reasons, the conviction and sentence passed against the petitioner by the courts below are liable to be set aside. The petitioner is entitled to an order of acquittal of the offence alleged against him. 8. In the result, the conviction and sentence passed by the courts below against the petitioner are set aside. The CRRP 3472/2009 10 petitioner is acquitted of the offence under Section 8(1)/ 8(2) of the Abkari Act. The bond executed by the petitioner shall stand cancelled. The amount, if any, deposited by the petitioner as directed by this Court shall be returned to him. This Criminal Revision Petition is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge