P. Raman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** **Crl.Rev.Pet.No.162 OF 2011** **AGAINST THE CONCURRENT FINDINGS OF GUILT AND JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE ADDL.SESSIONS JUDGE (ADHOC-I), KASARAGOD VIDE JUDGMENT DATED 18.09.2010 IN CRL.A.NO.17/2007 AND JUDGMENT DATED 18.12.2006 IN S.C.NO.302/2004 ON THE FILE OF THE ASST.SESSIONS JUDGE, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **P.RAMAN, AGED 31 YEARS, S/O.CHANIYA, KOTOOR,MULIYAR VILLAGE, KASARAGOD TALUK.** **BY ADV. SRI.S.JIJI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** SRI.C.K.PRASAD PP **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.06.2020, THE COURT ON 05.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.162 of 2011 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.162 of 2011 -----------------------------------------Dated this the 5[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.302/2004 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case is that, on 28.10.2000, at about 11:30 hours, at a public road at the place Kottur in Muliyar Village, PW1 Excise Circle Inspector found the petitioner having in his possession a plastic container, which contained 38 plastic packets, each packet containing 100 ml. of arrack. 3. The trial court framed charge against the petitioner for the offence under Section 55(a) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P6 documents and MO1 to MO3 material objects. No Crl.R.P.No.162 of 2011 3 evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. 6. The petitioner filed Crl.A.No.17/2007 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty and conviction recorded against him and the sentence imposed on him by the courts below are challenged by the accused in this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW1 is the Excise Circle Inspector who detected the offence. PW2 is the Preventive Officer who was in the excise Crl.R.P.No.162 of 2011 4 party led by PW1. PW1 and PW2 have given evidence regarding the occurrence in detail. 10. PW3 and PW4 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P6 is the chemical examination report in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 32.05% by volume of ethyl alcohol. 12. Learned counsel for the petitioner has contended that the evidence adduced by the prosecution is not sufficient to find that the very same sample of liquid taken at the spot of the occurrence was sent for analysis and tested in the laboratory and therefore, Ext.P6 chemical examination report cannot form the basis of conviction against the petitioner. 13. The evidence of PW1 and PW2 shows that, after taking sample of liquid from three plastic packets in a bottle, the sample bottle as well as the plastic container with the remaining 35 packets of liquid, was sealed at the spot of the occurrence and Crl.R.P.No.162 of 2011 5 label bearing the signature of PW1 and the accused and the witnesses was affixed on the sample bottle and the plastic container. Ext.P2 mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, also contains a recital to that effect. 14. PW1 had produced the accused and the articles and the documents, on the date of occurrence itself, before PW5 Excise Inspector. Ext.P3 is the crime and occurrence report prepared by PW5. Ext.P4 is the property list prepared by PW5 for producing the material objects before the court. The description of the sample bottle and the plastic container in these documents would show that there was seal and label on the properties when they were produced before the court on the date of occurrence itself. 15. Ext.P5 is the copy of the forwarding note prepared by PW5 for sending the sample for chemical analysis. It does not bear the specimen of the seal which was affixed on the sample bottle by PW1. The only seal in Ext.P5 is the seal of the Magistrate's Court. PW1 has stated on cross examination that it was his personal seal “K.K” which was used by him to seal the Crl.R.P.No.162 of 2011 6 sample bottle. That fact is not mentioned in Ext.P2 seizure mahazar. PW1 has also stated that he had not produced the specimen impression of the seal in the court. PW5 would say that PW1 had affixed his personal seal in the forwarding note. But, PW1 has not given any evidence that he had provided the specimen of his personal seal at the excise range office of PW5. In such circumstances, it has to found that the original of the forwarding note prepared by PW5 for sending the sample did not bear the specimen of the personal seal of PW1 so as to enable the chemical examiner to compare it with the seal on the sample bottle. Therefore, there is no assurance that the very same sample which was drawn at the spot of the occurrence was forwarded to the laboratory for analysis as per Ext.P5 forwarding note. It follows that Ext.P6 chemical examination report cannot form the basis of conviction against the petitioner. 16. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from_ Crl.R.P.No.162 of 2011 7 _failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related"._ 17. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. Crl.R.P.No.162 of 2011 8 18. The above mentioned vital aspects have not been considered by the courts below while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the courts below, cannot be sustained. The petitioner/accused is entitled to be acquitted. 19. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused under Section 55(a) of the Abkari Act is set aside. The petitioner is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge