Ponnappan v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 24[TH] DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945 ``` ## _`CRL.REV.PET NO. 3826 OF 2009`_ ``` AGAINST THE JUDGMENT IN CRL.APPEAL 104/2008 DATED 21.08.2009 OF SESSIONS JUDGE,THODUPUZHA CONFIRMING THE ORDER OF CONVICTION AND SENTENCE IN SC 618/2005 DATED 25.03.2008 OF ASSISTANT SESSIONS JUDGE,KATTAPPANA ``` ## _`REVISION PETITIONER/APPELLANT/ACCUSED:`_ ``` PONNAPPAN AGED 1 YEARS S/O. NARAYANAN, PANAMMOOTTIL HOUSE, KARUNAPURAM, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK,, IDUKKI DISTRICT. ``` ## _`RESPONDENT/RESPONDENT/COMPLAINANT STATE:`_ ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ``` SRI RENJIT GEORGE-SR.P.P. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No. 3826 of 2009 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** Crl. Revision Petition No. 3826 of 2009 **========================** ## _**O R D E R**_ ## **Dated this the 24[th] day of November, 2023** This revision is at the instance of the accused in S.C. No.618 of 2005 on the file of Assistant Sessions Judge, Kattappana, assailing the judgment in Crl. Appeal No.104 of 2008 on the file of Sessions Judge, Thodupuzha, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 17.06.2004 at about 5.35 p.m., PW4, the Circle Inspector of police, Nedumkandam and party, while conducting patrol duty, found the revision petitioner carrying a plastic can containing three litres of arrack and a glass tumbler at Thannippara - Karunapuram road near St.Mary’s Catholic Church, Karunapuram. The revision ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** petitioner was arrested and the contraband was seized. After completing the legal formalities, the revision petitioner was produced before the police station along with the records and the contraband, and thereafter, forwarded to the jurisdictional Magistrate. 3. PW5 investigated the case and laid charge sheet against the revision petitioner under Sections 55(a), 8(1) and 8(2) of the Abkari Act. 4. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 5, marked Exts.P1 to P11, and identified MO1 to MO3, to prove its case. 5. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. and he denied all the incriminating circumstances brought on record. DW1 was examined from defence side. ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** 6. On hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for a period of one year, and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of two months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.104 of 2008. The appellate court, on re-appreciating the facts and evidence, found nothing to interfere with the conviction and sentence imposed by the trial court, and hence, the appeal was dismissed, against which he has preferred this revision petition. 8. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent judgments of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari ``` Crl.R.P. No. 3826 of 2009 ``` ``` ..5.. ``` Act. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. The learned counsel for the revision petitioner would submit that, there were material irregularities in the search and seizure, which are sufficient to vitiate the trial. According to him, the revision petitioner was not arrested on 17.06.2004, and no contraband was seized from him, as alleged by prosecution. The definite case of the revision petitioner is that, he was in inimical terms with a police constable named Surendran, working in the office of the Circle Inspector of police, Nedumkandam, with respect to a boundary dispute, and due to that enmity, a false case was registered against him. DW1, a neighbour of the revision petitioner, was also examined to speak about the enmity between the revision petitioner and the police constable Surendran working in Nedumkandam CI Office. 11. In order to challenge the arrest of the revision petitioner ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** on 17.06.2004, learned counsel for the revision petitioner pointed out that in Ext.P4 arrest memo, the crime number also is seen. The time of the occurrence was at 5.35 p.m., on 17.06.2004. Ext.P8 FIR was prepared at 7.30 p.m., on 17.06.2004. Ext.P4 arrest memo prepared at the scene of occurrence itself, may not contain the crime number, as the crime was registered after about two hours of arrest of the revision petitioner. So, the arrest of the revision petitioner at the place of occurrence becomes doubtful. 12. In _**Rafeeque v. Sub inspector of Police & Anr**_ [2020 (4) KLT], this Court held that, the presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband, or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner, alleged by the prosecution. So, the presence of crime number in the arrest memo, gives room for doubting the genuineness of the arrest on the date, time and place, as alleged by the prosecution, and thereby, the seizure of the contraband also becomes doubtful. The revision petitioner is entitled to get the benefit of that doubt. 13. Another contention taken up by the revision petitioner is that in the seizure mahazar, there is no impression of the specimen seal. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle, lose its authenticity. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, that the sample taken from the contraband seized from the possession of the revision petitioner, was the sample which reached the hands of the chemical examiner. Seizure mahazar is the primary document ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** prepared at the time of detection, and the sample taken from the contraband, allegedly seized from the accused will be sealed at the place of seizure itself. When the seizure mahazar is having the specimen impression of the seal, and it tallies with the seal affixed on the sample bottle, it will guarantee the genuineness that the sample was taken at the scene of occurrence itself. When there is no specimen impression of the seal in the seizure mahazar, the seal in the sample bottle cannot be compared with the specimen seal. So, even if Ext.P11 chemical analysis report says that, the seals on the bottle were intact and found tallied with the sample seal provided, we cannot ascertain whether the seal found on the sample bottle was the seal affixed at the place of occurrence, at the time of detection, contemporaneous with the preparation of the seizure mahazar. So, no sanctity could be attached to the statement in the chemical analysis report that the seal found on the sample bottle found tallied with the sample seal provided. ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [31 x 7] intentionally omitted <==** 14. Prosecution was bound to establish the link evidence that the sample seized at the place of occurrence from the contraband possessed by the revision petitioner, was the sample which reached the lab for chemical analysis. In the absence of specimen impression of seal in the seizure mahazar, prosecution could not establish that link evidence. [See _**Moothedath Sivadasan v. State of Kerala**_ 2021 (1) KLT 744: 2021 KHC 3232, _**Sasidharan v. State of Kerala**_ 2007 (1) KLT 720: 2007 (1) KHC 275, _**Madhavan v. State of Kerala**_ 2019 (4) KLT 18]. 15. Absence of specimen impression of the seal in the seizure mahazar was a material factor in proving the link evidence, and as the prosecution failed to establish the link evidence, it is fatal to the prosecution case. 16. Another ground taken up by the revision petitioner is that, great prejudice was caused to him, as the investigation was done by a subordinate officer of the detecting officer. PW4, Circle Inspector of Police, Nedumkandam detected the offence. ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [37 x 7] intentionally omitted <==** According to the prosecution, he arrested the accused, seized the contraband and prepared the documents. PW5, the Sub Inspector of Police, Cumbummettu, investigated the case, who is a subordinate officer to PW4. That is a factor to be taken serious note of, as the revision petitioner has got a case that, he was in inimical terms with a police constable working in the office of the Circle Inspector of Police, with respect to a boundary dispute, and under his influence, the Circle Inspector of Police, implicated him in a false case. A subordinate officer investigating a case detected by his superior officer, may be in an embarrassing position to go against his superior officer, if at all his investigation reveals something which will have the effect of exonerating the accused from the allegations made against him. 17 **. In** _**Xavier v. State of Kerala**_ [1998 (1) KLT 686] this Court observed that, when the complainant himself is a Police official, the investigation should have been conducted by his top ranking officer or else it will cause prejudice to the accused, as ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [37 x 7] intentionally omitted <==** he will be deprived of his valuable rights of contradicting and corroborating the previous informations recorded under Sections 154 or 155 of Cr.P.C., and previous statement of the witnesses recorded under Section 161 of Cr.P.C. 18. No explanation is offered by the prosecution for entrusting the investigation to a subordinate officer. As the revision petitioner has got a definite case that the police official working in the office of the detecting officer was in inimical terms with him, and it is substantiated by the testimony of DW1, the plea of prejudice assumes significance. 19. The aforementioned material aspects were not taken note of by the trial court as well as the appellate court while convicting and sentencing the revision petitioner. So, the impugned judgments are liable to be set aside. 20. In the result, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act are hereby set ``` Crl.R.P. No. 3826 of 2009 ``` **==> picture [37 x 7] intentionally omitted <==** aside. He is found not guilty of the offences alleged, and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. ## **Sd/-** **SOPHY THOMAS** **JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```