NISAM @ SAMENAYI v. STATE OF KERALA

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ## _`CRL.REV.PET NO. 1575 OF 2016`_ ``` AGAINST THE ORDER IN CRL.A. No. 342/2013 OF ADDITIONAL SESSIONS COURT-I, MAVELIKKARA & IN SC 122/2010 OF ASSISTANT SESSIONS COURT, MAVELIKKARA ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` NISAM @ SAMENAYI AGED 39 YEARS S/O.SAIDU MUHAMMED, AGED 39, CHIRAYIL VEEDU, KMC - WARD 9, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. BY ADV SRI.K.R.SUNIL ``` ## _`RESPONDENT/RESPONDENT/COMPLAINANT:`_ ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## _`OTHER PRESENT:`_ ``` P.P.-SHRI SANAL P. RAJ ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl. Revision Petition No. 1575 of 2016 ## **========================** ## _**O R D E R**_ **Dated this the 04[th] day of December, 2023** This revision is at the instance of the accused in S.C. No.122 of 2010 on the file of Assistant Sessions Judge, Mavelikkara, assailing the judgment in Crl. Appeal No.342 of 2013 on the file of Additional Sessions Judge-I, Mavelikkara, by which he was convicted and sentenced under Section 58 of the Abkari Act. 2. The prosecution case is that on 07.06.2009 at 09.10 p.m., the revision petitioner was found in possession of 10 ¼ litres of illicit liquor for the purpose of sale. He was holding four bottles of illicit liquor in a plastic cover, and four bottles were found in the premises of his house. PW4, the Sub Inspector of Police, Kayamkulam and party, on patrol duty, detected the offence and ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..3.. ``` laid charge sheet against the revision petitioner under Sections 8(2), 55(a) and 55(i) of the Kerala Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(2), 55(a) and 55(i) of the Abkari Act to which, he pleaded not guilty. Thereupon, prosecution examined PWs.1 to 5, marked Exts.P1 to P10, and identified MOs.1 to 6, to prove its case. 4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. 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 analyzing the facts and evidence, the trial court found the revision petitioner guilty under Section 55(a) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for a further ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..4.. ``` period of three months. He was acquitted of the offences alleged under Sections 8(2) and 55(i) of the Abkari Act. 6. Aggrieved by the conviction and sentence under Section 55(a) of the Abkari Act, the revision petitioner preferred Crl. Appeal No.342 of 2013. On re-appreciating the facts and evidence, the appellate court found that the offence committed by the revision petitioner was coming under Section 58 of the Abkari Act, and not under Section 55(a) of the Abkari Act. So, his conviction and sentence under Section 55(a) of the Abkari Act was set aside and he was convicted under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for a period of three months and fine of Rs.1,00,000/- with a default sentence of simple imprisonment for a further period of one month, against which, he has preferred this revision. 7. Now, this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence of the revision petitioner under Section 58 of the Abkari Act, as per the ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..5.. ``` impugned judgment. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. Learned counsel for the revision petitioner is impugning the judgment mainly on the ground that, the liquor allegedly seized from the possession of the revision petitioner was not proved to be illicit liquor, and so, the conviction and sentence under Section 58 of the Abkari Act could not be attracted. Ext.P9, the chemical analysis report, is to the effect that, the sample analysed contained ethyl alcohol, and it is not specified that the sample analysed was of Indian Made Foreign Liquor/arrack/illicit liquor. There is nothing to show that, the contraband seized was either Indian Made Foreign Liquor or arrack. The testimony of PW4 coupled with Ext.P9 chemical analysis report is to the effect that, the sample analysed was illicit liquor. So, the contention taken by learned counsel for the revision petitioner that the sample was of Indian Made Foreign ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..6.. ``` Liquor is not tenable. 10. Now, coming to Ext.P1 seizure mahazar, it could be seen that, no specimen impression of the seal was affixed in the seizure mahazar, though it was stated that, the sample was taken from the contraband and it was sealed at the spot. The nature of the sample seal used for sealing the sample bottle, also will not find a place in the seizure mahazar. Prosecution is bound to prove tamper proof despatch of the sample from the time of its seizure, till it reaches the hands of the analyst for chemical examination. Ext.P1 seizure mahazar, a contemporaneous document prepared at the scene of occurrence at the time of seizure, if it contains the specimen impression of the seal, the very same seal found in the sample bottle, will ensure that the sample also was taken at the scene of occurrence, and it was sealed at the time of seizure itself. Since no such specimen impression of the seal is seen in Ext.P1 seizure mahazar, a genuine doubt arises as to genuineness of the seal with which the sample bottle was sealed, and also the ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..7.. ``` time of affixing the seal in the sample bottle. 11. 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._ 12. Next point argued by learned counsel for the revision petitioner is that, the prosecution claims that, the revision petitioner was arrested at the spot, and Ext.P3 arrest memo was prepared at the scene of occurrence itself. Admittedly, PW4, after detection, seizure, arrest, etc., reached the police station, along with the revision petitioner, and then only, crime was registered against him. Ext.P2, FIR shows that, it was registered on 07.06.2009 at 11.30 p.m. But Ext.P3, arrest memo, prepared at ``` Crl.R.P. No. 1575 of 2016 ``` ``` ..8.. ``` the time of occurrence, i.e. on 07.06.2009 at 9.10 p.m., shows the crime number also. So, the arrest of the revision petitioner on 07.06.2009 at 09.10 p.m, becomes doubtful, as the crime number, which was registered after about two and a half hours, was indicated in the arrest memo. 13. In _**Rafeeque v. Sub inspector of Police**_ [2020 (4) KLT 188], this Court held that, _the presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband, or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner, alleged by the prosecution._ ``` Crl.R.P. No. 1575 of 2016 ``` **==> picture [31 x 7] intentionally omitted <==** 14. Another grievance pointed out by the learned counsel for the revision petitioner is that, the detection, arrest, seizure, etc were all done by PW4, the Sub Inspector of Police, Kayamkulam. He himself investigated the case and laid charge sheet against the revision petitioner. According to learned counsel for the revision petitioner, serious prejudice has been caused to him, since the case was investigated by the detecting officer himself. 15. In _**Bhaskaran v. State of Kerala**_ [2020 KHC 5296], this Court observed that, _without any exigencies of the situation, the detecting officer who registered the case himself conducted the entire investigation and filed the final report. The court held that such “one man show” conducted by the officer has definitely caused prejudice to the accused._ 16. PW4 could not show that, he became the investigating officer due to any exigencies of the situation. A fair investigation, which is the very foundation of a fair trial, necessarily postulates ``` Crl.R.P. No. 1575 of 2016 ``` **==> picture [37 x 7] intentionally omitted <==** that the informant and the investigator must not be the same person. So, in that regard also, the argument put forward by the learned counsel for the revision petitioner assumes significance, especially when there are circumstances to doubt the genuineness of the arrest of the revision petitioner, at the scene of occurrence, and tamper proof despatch of the sample. 17. Without noticing these vital deformities, the appellate court found the revision petitioner guilty of the offence punishable under Section 58 of the Abkari Act and sentenced him thereunder. Absence of specimen impression of the seal in the seizure mahazar, presence of crime number in the arrest memo, etc, etc are grounds to doubt the genuineness of the prosecution case. The revision petitioner is entitled to get the benefit of that doubt. So, the conviction and sentence imposed on the revision petitioner by the appellate court under Section 58 of the Abkari Act is liable to be set aside. 18. In the result, the impugned judgment is set aside and the ``` Crl.R.P. No. 1575 of 2016 ``` **==> picture [37 x 7] intentionally omitted <==** revision petitioner is found not guilty of the offence punishable under Section 58 of the Abkari Act and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** ## **SOPHY THOMAS** **JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```