P. Joy Thomas v. Excise Inspector and State of Kerala

Crl.R.P. No. 3348 of 2007 : 1: ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 3348 OF 2007 AGAINST THE ORDER/JUDGMENT CRA 302/2001 OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY CC 505/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS- ``` ## **`I,MATTANNUR`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` P.JOY THOMAS ``` ``` S/O THOMAS, AGED ABOUT 46 YEARS, PANAKKAL HOUSE,, VILAMANA AMSOM DESOM, P.O.KILIYANTHARA,, KANNUR. BY ADV SRI.JIJI THOMAS ``` ## **`RESPONDENTS/RESPONDENT COMPLAINANT AND STATE:`** ``` 1 EXCISE INSPECTOR 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY P.P., SRI. RENJITH GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 3348 of 2007 : 2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 3348 of 2007 ============================ Dated this the 26[th] day of September, 2023** ## **O R D E R** The revision petitioner herein is the 1[st] accused in C.C. No. 505 of 1997 on the file of Judicial Magistrate of 1[st] Class-I, Mattannur alleging commission of offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that, on 09.10.1996 at 4.30 pm, the petitioner was found in possession of 25 packets of Karnataka arrack in contravention of the provisions of the Abkari Act and while he was attempted to be arrested, he transferred the contraband to another and attempted to flee away in order to avoid the arrest and thereby the accused has committed the alleged offence. 3. Since the second accused was absconding the case against him was split up and refiled as C.C. 351/2001. To prove the case of the prosecution PWs 1 to 5 were examined and Exts P1 to P3 were marked and identified MO1 series and MO2. The trial Court found the accused guilty and convicted the accused and sentenced him to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 25,000/- and in default of Crl.R.P. No. 3348 of 2007 : 3: payment of fine, to undergo simple imprisonment for a further period of three months. Set off was also allowed by the trial Court. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was filed as Crl. Appeal No.302 of 2001, but the same was also dismissed confirming the conviction and sentence imposed by the trial Court. It is aggrieved by the same, the present revision petition has been filed. 5. The primary contention raised is that PW3 who is the independent witness cited to prove the case of the prosecution has turned hostile. It is further contended that no arrest memo or any arrest intimation is produced and marked. It is also contended that though PW1 specifically states that the sample was taken on the spot and after taking the sample, the sample bottle and the can were sealed, no specimen seal is seen affixed in the mahazar. It is also contended that no forwarding note is produced and marked to prove the case of the prosecution. 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 Crl.R.P. No. 3348 of 2007 : 4: 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. 7. I have gone through the records available and also the judgments of the Courts below. The alleged occurrence was on 09.10.1996. A reading of Ext P1 mahazar revealed that they were apprehended at the spot, but it is seen that no arrest memo or arrest intimation has been produced and marked in this case. The Apex Court in **D.K.Basu v. State of West Bengal (1997) 1 SCC 416** , has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest. This court in **Baburaj’s** case cited supra has held that the nonproduction of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore the noncompliance of Crl.R.P. No. 3348 of 2007 : 5: mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in ## **Ramankutty v. Excise Inspector, Chelannur Range, 2013** **(3) KLT SN 83** which held that noncompliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. This court in **Rafeeque** **v. Sub Inspector of Police, 2020 (4) KLT 188** has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT 371** . Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 8. Ext P1 is the mahazar prepared at the time of arrest. Ext P1 mahazar does not contain the specimen seal of the officer concerned who has taken the sample and does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. No forwarding note is seen produced and marked in this case. 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 Crl.R.P. No. 3348 of 2007 : 6: seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. 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 (in the present case no forwarding note is marked), there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was 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 **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96), Ramachandran v. State of Kerala, 2021 (1) KLT 739** and in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744.** This court in **Sasidharn 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 in **State of Rajasthan v. Daulat Ram, AIR 1980 SC** Crl.R.P. No. 3348 of 2007 : 7: **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 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. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/1st 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 Crl.R.P. No. 3348 of 2007 : 8: against him. The bail bond shall stand cancelled and he is set at liberty. **Sd/-** **VIJU ABRAHAM JUDGE** sbk/-