Omanakuttan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 ``` ## **`CRL.REV.PET NO. 2334 OF 2010`** ``` AGAINST THE JUDGMENT IN CRL.APPEAL NO.573/2008 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (FAST TRACK-II), ALAPPUZHA DATED 21.5.2010, WHEREBY THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE ASSISTANT SESSIONS JUDGE, ALAPPUZHA DATED 7.11.2008 IN SC NO.221/2006. ``` ## **`REVISION PETITIONER/APPELLANT/1ST ACCUSED:`** ``` OMANAKUTTAN, S/O.KOCHUCHERUKKAN, PARIMANAM MURI, PATHINANCHIL CHIRAYIL, CHEPPAD VILLAGE, ALAPPUZHA DISTRICT. ``` ``` BY ADV SRI.M.R.ARUN KUMAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` PUBLIC PROSECUTOR RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **`Crl.R.P.No.2334 of 2010`** 2 ## **`VIJU ABRAHAM,J`** ## **`----------------------Crl.R.P.No.2334 of 2010 ------------------------------------Dated this the 12[th] day of October, 2023`** ## **`ORDER`** ``` The revision petitioner is the 1[st] accused in ``` ``` S.C No.221 of 2006 on the file of the Assistant Sessions Judge, Alappuzha alleging commission of offence punishable under Sections 55(g) of Kerala Abkari Act. ``` `2. The allegation against the accused is that` ``` they with a common intention possessed altogether ``` ``` 120 litres of wash and utensils for the illegal ``` ``` manufacturing of arrack. It was detected by CW1 and his excise party on 15.12.2000 at about 11.45 am, while the accused were near the furnace which is owned by one Pathayathil Pappachan of Thekkekkara Kizhakkum muri in Cheppad Village and thereby committed the above said offence. ``` `3. To prove the case of the prosecution PWs.1 to 4 were examined and Exts.P1 to P8 were marked` **`Crl.R.P.No.2334 of 2010`** 3 ``` and identified Mos.1 to 4. ``` `4. The trial court on consideration of the` ``` evidence adduced found that the accused is guilty of the charges levelled against him and the accused was convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, the accused is liable to undergo simple imprisonment for 6 months, accused nos. 2 and 3 were acquitted. ``` ``` The trial court has also allowed set off. ``` `5. Aggrieved by the said conviction and` ``` sentence, the revision petitioner filed an appeal as Crl.Appeal No.573 of 2008 before the Addl. ``` ``` Sessions Judge (Fast Track-II), Alappuzha, and the appellate court confirmed the conviction and ``` ``` sentence passed by the trial court. ``` `6. The revision petitioner raised various` ``` contentions assailing the order of conviction and ``` ``` sentence imposed by the Court below. A perusal of Ext.P1 seizure mahazar would reveal that no specimen seal is seen affixed, nor the description ``` **`Crl.R.P.No.2334 of 2010`** 4 ``` of the nature of the seal affixed on the sample has been stated in the seizure mahazar. He relying on Ext.P5 forwarding note would contend that the name ``` ``` of the excise guard through whom the sample was sent for chemical analysis is not seen mentioned. Therefore, in the said circumstance it was incumbent on the part of the prosecution to examine the excise guard to substantiate the same. Yet another contention raised by the petitioner is that though seizure was on 15.12.2000 and the chemical analysis report was ready on 31.8.2001, the charge was filed only on 18.11.2005. Therefore, on the basis of the same, it is contended that there is an inordinate unexplained delay of almost 5 years, which is fatal to the case of the prosecution, the same is against the mandate under Section 50 of the ``` ``` Abkari Act. ``` ``` 7. 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 ``` **`Crl.R.P.No.2334 of 2010`** 5 ``` 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 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. ``` ``` 8. Let me consider the contentions raised by the ``` ``` learned counsel for the revision petitioner. It is contended that a perusal of Ext.P1 seizure mahazar would reveal that no specimen seal is seen affixed, nor the description of the nature of the seal affixed on the sample has been stated in the ``` **`Crl.R.P.No.2334 of 2010`** 6 ``` seizure mahazar. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. This court in Vijayan v. State of Kerala, 2021 (5) KLT 321, has 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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 1030, it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note, there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was ``` **`Crl.R.P.No.2334 of 2010`** 7 ``` produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in ``` ## **`Moothedath Sivadasan v. State of Kerala, 2021 (1)`** ``` KLT 744 and held that since no specimen impression of seal is seen affixed in the seizure mahazar 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. This court in Sasidharan v. State of Kerala, 2007 (1) KLT 720 has 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 inState of Rajasthan v. Daulat Ram, AIR 1980 SC 1314, this court in Sasidharn’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to ``` **`Crl.R.P.No.2334 of 2010`** 8 ``` 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. ``` ``` 9. Yet another contention raised is that in Ext.P5 forwarding note the name of the excise guard through whom the sample was sent for chemical analysis is not seen mentioned and therefore, it was incumbent on the part of the prosecution to ``` **`Crl.R.P.No.2334 of 2010`** 9 ``` examine the excise guard to substantiate the same. This court in Kumaran v. State of Kerala, 2016 (4) KLT 718, in paragraph 7 of the order held as follows: ``` ``` “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how ``` **`Crl.R.P.No.2334 of 2010`** 10 ``` many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” ``` ``` 10. Yet another contention raised by the petitioner ``` ``` is that though seizure was on 15.12.2000 and the ``` ``` chemical analysis report was ready on 31.8.2001, the charge was laid only on 18.11.2005. Therefore, on the basis of the same, it is contended that ``` **`Crl.R.P.No.2334 of 2010`** 11 ``` there is an inordinate unexplained delay of almost 5 years, which is fatal to the case of the prosecution, the same is against the mandate under Section 50 of the Abkari Act. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650), Surendran and Another v. State of Kerala 2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4) KLT 718and the decision in Moothedath Sivadasan v. State of Kerala, 2021 (1) ``` ``` KLT 744 in support of his contentions. In Chandran's case (Supra) paragraph 12 of the ``` ``` judgment reads as follows: ``` ``` “12.There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the ``` **`Crl.R.P.No.2334 of 2010`** 12 ``` investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).” ``` ``` In Surendran's case (Supra), paragraph 12 reads as follows: ``` ``` “12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. ``` **`Crl.R.P.No.2334 of 2010`** 13 ``` There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained.” ``` ``` InKumaran’s case (supra), paragraph 6 reads as ``` ## `follows:` ``` “6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on ``` **`Crl.R.P.No.2334 of 2010`** 14 ``` 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.” ``` ``` In Moothedath Sivadasan case (supra) it was held ``` ``` that unexplained delay in completing the ``` ``` investigation is fatal to the prosecution case. ``` ``` There is no explanation offered for the delay. In ``` ``` the said circumstance, I am of the opinion that the same is fatal to the prosecution. ``` **==> picture [393 x 13] intentionally omitted <==** ``` considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/1st accused. ``` **`Crl.R.P.No.2334 of 2010`** 15 ``` 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/1st accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and heis set at liberty forthwith. ``` ``` Needlesstosay,iftherevision ``` ``` petitioner/1st 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 ``` ``` pm ```