Pavithran and others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 7 [ TH ] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, ``` ``` 1945 ``` ``` CRL.REV.PET NO. 3194 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 31.05.2006 IN CRA 453/2003 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT-III, PATHANAMTHITTA ``` ``` CC 380/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR ``` ## **`REVISION PETITIONERS/APPELLANTS/ACCUSED:`** ``` 1 PAVITHRAN, S/O.KUNJIRAMAN, KAIMALAZHIKATHU VEEDU, ENATHU PADINJARE MURI, ENATHU VILLAGE, ADOOR TALUK. ``` ## **`2 JAYAN, S/O.BHASKARAN,`** ``` THONDUKANDATHIL KIZHAKAKEKARA, PUTHEN VEEDU, PERINGINAD VILLAGE, ADOOR TALUK. ``` ## **`3 BHASKARAN THONDUKANDATHIL KIZHAKAKEAKRA PUTHEN VEEDU,`** ``` BY ADV SRI.C.B.SREEKUMAR ``` ## **`RESPONDENTS/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`SHRI SANAL P. RAJ, PUBLIC PROSECUTOR`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.3194 of 2006 2 ## **O R D E R** This revision is at the instance of the accused in C.C.No.380 of 1997 on the file of Judicial First Class Magistrate, Adoor, assailing the judgment in Crl.Appeal No.453 of 2003 on the file of Additional District and Sessions Judge (Adhoc) Fast Track Court-III, Pathanamthitta, dated 31.05.2006. 2. Prosecution case is that on 26.11.1996, at 11.45 p.m., PW3-the Excise Inspector of Adoor Excise Range and party, while doing patrol duty, got reliable information that spirit was illegally stocked in House No.267 in Ward No.XII of Pallikkal Panchayat, and after sending search memo to court, PW3 and party proceeded to that house. They entered the house through the door which was lying open and on search of the house, seized 58 cans containing 2800 litres of spirit. After completing the legal formalities, like sampling labelling etc. the contraband was taken to the Excise Office Crl.R.P No.3194 of 2006 3 and PW3 himself registered Ext.P4 occurrence report. On investigation, it was found that the building from where the contraband was seized belonged to the 3rd revision petition (A3), and his son the 2nd revision petitioner (A2) rented out that building to the 1st revision petitioner (A1). Since the 1st revision petitioner was possessing 2800 litres of spirit in the building taken on lease by him, he was charged under Section 55(a) of the Abkari Act. Since revision petitioners 2 and 3 (A2 and A3) permitted the 1st revision petitioner for storing spirit in their building, they were charged under Section 64A of the Abkari Act. 3. On appearance of the revision petitioners before the trial court, charge was framed under Section 55(a) and Section 64A of the Abkari Act, to which all of them pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 4, marked Exts.P1 to P9 and identified MO1 series. On closure of prosecution evidence, the revision petitioners were questioned under Section 313 of Cr.P.C. Crl.R.P No.3194 of 2006 4 They denied all the incriminating circumstances brought on record but no defence evidence was adduced. 4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioners 1 and 2 (A1 and A2) guilty under Section 55(a) of the Abkari Act, and they were convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.25,000/- each, with a default sentence of simple imprisonment for a further period of three months. The 3rd revision petitioner (A3) was found guilty under Section 64A of the Abkari Act and he was convicted and sentenced to pay fine of Rs.25,000/- with a default sentence of simple imprisonment for three months. 5. Aggrieved by the conviction and sentence, the revision petitioners preferred Crl. Appeal No.453 of 2003 and the appellate court, on re-appraisal of the facts and evidence, found the 2nd revision petitioner (A2) guilty under Section 64A of the Abkari Act and he was sentenced to pay Crl.R.P No.3194 of 2006 5 fine of Rs.25,000/-. The conviction of the 1st revision petitioner (A1) under Section 55(a) of the Abkari Act was altered into one under Section 58 of the Abkari Act, without altering the sentence of rigorous imprisonment for one year and fine of Rs.25,000/-. The conviction and sentence of the 3rd revision petitioner under Section 64A of the Abkari Act by the trial court were upheld and maintained. Impugning the appeal judgment, the revision petitioners filed the above revision petition. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioners by the courts below. 7. Heard learned counsel for the revision petitioners and learned Public Prosecutor. 8. Learned counsel for the revision petitioners is assailing the conviction and sentence pointing out the material defects in the prosecution case, which according to him, are sufficient to vitiate the trial. Moreover, identity of Crl.R.P No.3194 of 2006 6 the accused were not proved beyond doubt. 9. PW3 has no case that on the date of detection, any of the accused were arrested. According to him, the 2nd revision petitioner (A2) surrendered before the Excise Office on 27.11.1996. The 1st revision petitioner (A1) surrendered before the court and he was released on bail. Though he produced Ext.P5 rent deed, by which, the said building was rented out to the 1st revision petitioner by the 2nd revision petitioner (A2), he has no case that he ever identified the 1st revision petitioner or verified his address, with the address shown in Ext.P5 rent deed. 10. PWs 1 and 2, the independent witnesses, turned hostile to the prosecution and according to them, they did not witness the search and seizure conducted by PW3. They denied the signatures also seen in Ext.P3 seizure mahazar. So the identity of the revision petitioners could not be proved by prosecution. 11. Learned counsel for the revision petitioner pointed Crl.R.P No.3194 of 2006 7 out that in Ext.P 3 seizure mahazar, no specimen impression of the seal is seen affixed. 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. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. 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. (See **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** ). In the absence of specimen impression of the seal in the seizure mahazar, the prosecution failed to prove the link evidence that the sample analysed in the Laboratory was the sample taken from the contraband possessed by the accused/revision petitioners, the benefit of which shall go to them. Crl.R.P No.3194 of 2006 8 12. Prosecution did not produce the forwarding note along with Ext.P8 property list. The forwarding note was also a material document to prove the seizure of the contraband at the place of occurrence, and it shall also contain the specimen impression of the seal. The sample has to be forwarded to the Chemical Analyst along with the forwarding note, which contains the specimen impression of the seal. The Analyst is verifying the sample seal provided in the forwarding note, to get it tallied with the seals found in the sample bottles. In the absence of forwarding note itself, we cannot say whether it contained specimen impression of the seal. So, the statement in the chemical report that the seals on the bottles were intact and found tallied with the sample seal provided is of no consequence. 13. Ext.P9 Chemical Report shows that the sample bottles were forwarded to the Chemical Examiner’s Laboratory on 06.05.1997. But it reached the Laboratory only on 08.05.1997 with a delay of two days. The Crl.R.P No.3194 of 2006 9 prosecution was bound to explain that delay by examining the Excise Guard, who took the sample bottles from the court but that was not done. Since that delay stands unexplained, we cannot say that there was tamper proof despatch of the sample especially in the absence of forwarding note. 14. As we have seen, PW3 detected the offence registered the crime, and he himself investigated the case. In **Bhaskaran’s case** cited (Supra), in paragraph 23 this Court held 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. 15. In the case on hand, there was no arrest of the revision petitioners at the scene of crime. There is nothing to show that the accused were identified during the process of investigation. The building belonged to the 3rd revision Crl.R.P No.3194 of 2006 10 petitioner as per Ext.P6 ownership certificate. The 2nd revision petitioner is his son and he, according to the prosecution, rented it out to the 1st revision petitioner. The person who issued Ext.P6 ownership certificate was not examined by the prosecution to prove that document. So also prosecution failed to prove the ownership of the 3rd revision petitioner over the building in question, and the dominion of the 2nd revision petitioner over that building. EXt.P2 search list was seen produced before the jurisdictional Magistrate Court only on 05.05.1997, though the occurrence was on 26.11.1996. That also casts serious doubt regarding the genuineness of the prosecution case. 16. For all these reasons, the veracity of the prosecution case is to be doubted and the revision petitioners are entitled to get the benefit of that doubt. The trial court as well as the appellate court, without noticing these material defects, convicted and sentenced the revision petitioners under Section 58 and Section 64A of the Abkari Crl.R.P No.3194 of 2006 11 Act. So the conviction and sentence are liable to be set aside. 17. In the result, setting aside the conviction and sentence imposed on the revision petitioners by the courts below, the revision petitioners are found not guilty of the offences alleged against them, and they are acquitted there under. Their bail bonds are cancelled and they are set at liberty forthwith. Accordingly, this revision petition stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-