PRADEEP KUMAR v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 1421 OF 2006 ``` ``` CRA NO.616/2002 OF ADDITIONAL SESSIONS COURT-II, KOZHIKODE SC 320/2001 OF I ADDITIONAL ASSISTANT SUB COURT, KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` PRADEEP KUMAR, KOODATHUMPOYIL, MAKKADA AMSOM, DESOM, KOZHIKODE TALUK. ``` ``` BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, CHELANNUR EXCISE RANGE. ``` ## **`OTHER PRESENT:`** ``` PP - M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.RP No.1421 of 2006 2 ## **VIJU ABRAHAM, J.** **................................................................. Crl.R.P. No.1421 of 2006 .................................................................** Dated this the 29[th] day of September, 2023 ## **ORDER** Revision petitioner is the accused in S.C.No.320 of 2001 on the file of the I Additional Assistant Sessions Court, Kozhikode who is the appellant in Crl.Appeal No.616 of 2002 on the file of the Additional Sessions Court - II, Kozhikode. The petitioner was charge-sheeted by the Excise Inspector, Chelannoor Excise Range for offence punishable under Section 55(a) of the Kerala Abkari Act. 2. The prosecution allegation is that on 03.09.1998 at 4.30 p.m. accused was found in possession of four litres of arrack in a can having a capacity of ten litres at the backside of the Rural Development Board shopping complex at Kakkodi Bazaar and thereby the accused has committed the alleged offences. 3. To prove the case of the prosecution, PWs 1 to 7 were examined. P1 to P10 were marked and MO1 was identified. The trial court on appreciation of the evidence adduced, held the accused guilty of the offence punishable under Section 55(a) of the Kerala Abkari Act and thus convicted and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the accused was directed to undergo simple Crl.RP No.1421 of 2006 3 imprisonment for a further period of one year. It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. The appellate court did not interfere with the conviction and sentence passed by the trial court and dismissed the appeal. 4. The petitioner raised various contentions assailing the order of conviction and sentence imposed by the courts below. The first contention raised is that arrest intimation has not been made to the near relatives of the accused and the same is not seen produced and marked in the trial. Secondly, it was contended that in Ext.P1 seizure mahazar there is no specimen seal affixed or the description of the nature of the seal affixed on the sample is also not stated in Ext.P1 seizure mahazar. Further contention raised is that the occurrence was on 03.09.1998 whereas Ext.P8 property list was produced before the court only on 10.09.1998, there is an unexplained delay of seven days. To the said contention, the learned Public Prosecutor based on the evidence of PW7 submits that the delay has been properly explained inasmuch as the thondy articles were produced before the charge Magistrate who is the Judicial First Class Magistrate, Perambra and it is only due to the delay in getting the documents from the Judicial First Class Magistrate Court, Perambra that some delay occurred in producing the seized contraband along with the sample before the jurisdictional Magistrate. As is seen from the endorsement in Ext.P7 which is the report of remand, the learned Magistrate has endorsed on Crl.RP No.1421 of 2006 4 04.09.1998 that the accused has been produced and further that it is endorsed by the charge Magistrate that the items of property which are ten litre cannas and sample bottle were directed to be produced before the Judicial First Class Magistrate Court, Kunnamangalam on 07.09.1998. Learned counsel for the revision petitioner would submit that though there was a direction to produce before the jurisdictional Magistrate the same was produced only on 10.09.1998. 5. 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. 6. As regards the contention of the petitioner that there is a delay in the production of the alleged contraband and sample before the court, I Crl.RP No.1421 of 2006 5 find that the prosecution has sufficiently explained the reason for the delay. In fact, the alleged contraband was produced before the charge Magistrate on 04.09.1998 itself and it is only due to the delay in records reaching the jurisdictional court from the charge magistrate court where the accused was produced for the first instance that the contraband could be produced only on 10.09.1998. Since the contraband was produced before the court on the very next day of the seizure, i.e., 04.09.1998, I am not inclined to accept the contention of the petitioner that there is unexplained delay in production of the contraband before the court. 7. 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 non-production 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 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 Crl.RP No.1421 of 2006 6 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. Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 8. 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 seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note. 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 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 **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** and held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis **.** This court in **Sasidharn v. State of Kerala, 2007 (1) KLT 720** has considered and emphasized the legal Crl.RP No.1421 of 2006 7 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 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/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 Crl.RP No.1421 of 2006 8 petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. 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** cks