Peravakutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 CRL.REV.PET NO. 432 OF 2016** **AGAINST THE ORDER/JUDGMENT SC 305/2014 OF III ADDITIONAL SUB COURT, KOZHIKODE CRA 387/2015 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** PERAVAKUTTY AGED 64 YEARS, S/O. PERACHAN, KALLARAMMAL HOUSE, KARANTHOOR(PO), KUNNAMANGALAM AMSOM, KARANTHOOR DESOM, KOZHIKODE DISTRICT BY ADV SRI.P.V.ANOOP ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI 682 031 **OTHER PRESENT:** PP – SRI. RENJIT GEORGE **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.432 of 2016 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.432 of 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 305 of 2014 on the file of IIIrd Additional Assistant Sessions Court, Kozhikode, alleging commission of offences punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution allegation in short is that the revision petitioner was found in possession of 5 litres of illicit arrack on 20.02.2012 at 7.30 pm, near the house of one Kallarammal Balan situated at Kunnamangalam Desom and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 5 and Exts. P1 to P7 were marked and MO1 was identified. The trial Court found the accused guilty and convicted him to undergo simple imprisonment for a period of one year and to pay a fine of :3: CRL. R.P. No.432 of 2016 Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.387 of 2015 before the Special Additional Sessions Judge (Marad Cases), Kozhikode which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned counsel for the revision petitioner raised the following contentions: There is an inordinate and unexplained delay in completing the investigation, which goes against the mandates of Section 50 of the Abkari Act. It is also contended that the occurrence was on 20.02.2012 and the chemical analysis report was ready on 20.09.2012, even then the complaint was filed only on 29.10.2013, i.e., more than a year after the chemical analysis report was received. There is no explanation for the same. Yet another contention raised by the revision petitioner is that though the occurrence was at 7.30 p.m. and the place of occurrence is a narrow lane without any CRL. R.P. No.432 of 2016 :4: availability of light, there is no mention in the mahazar as to how the detecting officers identified the accused. The petitioner relies on the judgment in _**Amit Kapoor v. Ramesh Chander & Anr [2012 (9) SCC 460]**_ to contend for the position that even in revisional jurisdiction, the court could interfere in a case where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Another contention raised by the petitioner is that on a perusal of Ext.P7 chemical analysis report it is revealed that it does not contain the date of the forwarding letter, by which the samples were forwarded by the jurisdictional magistrate. A perusal of Ext.P6 forwarding note would also reveal that no date is shown when the same was forwarded to the chemical analysis laboratory, though the samples were received on 21.02.2012. It is contended that in the absence of any proof of the same, either in Exts. P6 or P7, it is incumbent on the part of the prosecution to examine either the property clerk or the person through whom the materials were sent to the chemical analysis laboratory, CRL. R.P. No.432 of 2016 :5: which is not done in the present case, which is fatal to 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 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. As regards the contention raised by the revision petitioner that though the occurrence was at 7.30 p.m. and the place of CRL. R.P. No.432 of 2016 :6: occurrence is a narrow lane without any availability of light, there is no mention in the mahazar as to how the detecting officers identified the accused, learned public prosecutor would contend that PW2 and PW3 have given sufficient evidence by deposing that they had a torch in their possession and in the torchlight they have seen the accused. The learned public prosecutor further submits that since sufficient evidence has been given by PW2 and PW3 regarding the same, the contention raised by the petitioner cannot be accepted and further that this court cannot go into such contentions while exercising its revisional power. True, in _**Amit Kapoor** '_ s case cited (Supra) the Apex Court has held that in certain circumstances enumerated therein like where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely, court can interfere with the decisions of the trial court and the appellate court while exercising its revisional powers but prosecution through the evidence of PW2 and PW3 has explained how the accused was identified though the alleged :7: CRL. R.P. No.432 of 2016 occurrence was at 7:30 p.m. Therefore, I am of the opinion that none of the circumstances mentioned in _**Amit Kapoor** '_ s case cited (Supra) _,_ is available in the facts and circumstances of this case and therefore, I am not inclined to accept the contention of the revision petitioner. 8. Another contention raised by the petitioner is that on a perusal of Ext.P7 chemical analysis report it is revealed that it does not contain the date of the forwarding letter, by which the samples were forwarded by the jurisdictional magistrate. A perusal of Ext.P6 forwarding note would also reveal that no date is shown when the same was forwarded to the chemical analysis laboratory, though the samples were received on 21.02.2012. It is contended that in the absence of any proof of the same, either in Exts. P6 or P7, it is incumbent on the part of the prosecution to examine either the property clerk or the person through whom the materials were sent to the chemical analysis laboratory, which is not done in the present case, which is fatal to the case of the prosecution. I find considerable force in the contention of the revision petitioner. When the documents produced by the prosecution like Ext P6 and P7 to substantiate their contentions do not show the date when CRL. R.P. No.432 of 2016 :8: the same was forwarded to the chemical analysis laboratory for examination, it was incumbent on the part of the prosecution either to examine the property clerk attached to the court or the guard through which the sample was sent for examination. In _**Krishnadas v. State of Kerala [2019 KHC 191]**_ **,** this court has held that the unexplained delay between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. This court in _**Viayan 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 thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. This court in _**Gnanaprakasham v. State of Kerala, [2021 (4) KLT OnLine 1089]**_ has held that evidence regarding the date on which the learned Magistrate sent the sample to the laboratory and the date on which the Excise Guard referred to in Ext.P6 received the CRL. R.P. No.432 of 2016 :9: sample from the court is very vital while looking for assurance regarding the question whether the very same sample allegedly drawn at the scene of occurrence reached the hands of the Analyst in a tamper proof condition. In such circumstances, the prosecution ought to have examined the thondy clerk of the court or the guard who had taken the sample to the analyst so as to prove the tamper-proof despatch of the sample to the laboratory. A similar view was taken by this court in _**Kumaran v. State of Kerala, [2016 (4) KLT 718]**_ . 9. Now let me consider the contention of the revision petitioner regarding the inordinate and unexplained delay in completing the investigation. The occurrence was on 20.02.2012 and the chemical analysis report was ready on 20.09.2012, even then the complaint was filed only on 29.10.2013, i.e., more than a year after the chemical analysis report was received. 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**_ CRL. R.P. No.432 of 2016 :10: _**and Another v. State of Kerala [2013(3) KHC 780], Kumaran v. State of Kerala, [2016 (4) KLT 718]**_ and 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 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_ CRL. R.P. No.432 of 2016 :11: _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. 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_ .” ## In **Kumaran’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,_ CRL. R.P. No.432 of 2016 :12: _even though the incident was on 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. 10. The above vital aspect was not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/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 CRL. R.P. No.432 of 2016 **==> picture [20 x 9] intentionally omitted <==** conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty forthwith. Needless to say, if the revision petitioner/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** sm/