Prasad v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** ## **CRL.REV.PET NO. 4002 OF 2010** **AGAINST THE JUDGMENT DATED 17.2.2010 IN CRA 100/2009 OF THE ADDITIONAL SESSIONS COURT-I,MAVELIKKARA SC 432/2005 OF ASSISTANT SESSIONS COURT, MAVELIKKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** PRASAD, S/O.KUTTY, AKKANATTUTHARAYIL VEEDU, VETTIYAR MURI,VETTIYAR VILLAGE. BY ADV SRI.A.K.ALEX ## **RESPONDENT:** STATE OF KERALA, REP. BY THE EXCISE INSPECTOR MAVELIKARA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PP- RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.R.P.No.4002 of 2010 2 ## **VIJU ABRAHAM,J** ## **----------------------Crl.R.P.No.4002 of 2010** ## **------------------------------------Dated this the 6[th] day of October, 2023** ## **ORDER** The revision petitioner is the accused in Crime No.105 of 2003 of Mavelikara Excise Range alleging commission of offences punishable under Sections 8(1), (2) and 55(a) of the Abkari Act. 2. The prosecution case is that on 7.7.2003 at about 8 p.m. the petitioner was found transporting one litre of spirit in MO(1) plastic bottle in a bicycle peddled by him along a public road in front of T.M.Varghese Memorial School and thus committed the above-said offence. 3. To prove the case of the prosecution PWs.1 to 5 were examined and proved Exts.P1 to P4 and MO1. 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Crl.R.P.No.4002 of 2010 3 Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of 3 months. The trial court has also allowed set off. 5. Aggrieved by the said conviction and sentence, the revision petitioner filed an appeal as Crl.Appeal No.100 of 2009 before the Additional Sessions Judge-I, Mavelikara and the appellate court confirmed the conviction and sentence passed by the trial court. 6. The learned counsel appearing for the revision petitioner would raise the following contentions: Going by the prosecution case, the occurrence was on 7.7.2003 and the revision petitioner/accused was arrested on 7.7.2003. No arrest memo or arrest intimation was produced to prove the same. While cross-examining PW1, the specific stand of the accused was that he was not arrested from the spot mentioned in the mahazar. PW3, an independent witness examined to prove the seizure, turned hostile to the prosecution case and he deposed that he did not see the seizure of Crl.R.P.No.4002 of 2010 4 the alleged contraband from the possession of the accused. Next contention raised by the petitioner is that in Ext.P1 mahazar, there is no specimen seal affixed, nor the description of the seal affixed on the sample bottle is stated therein. Yet another contention raised by the revision petitioner is that no forwarding note is produced and marked to prove that the sample has been forwarded to the chemical analysis laboratory for examination. He would also further contend that a perusal of Ext.P2 chemical analysis report would reveal that the sample was sent for chemical examination by the jurisdictional Magistrate's court on 18.7.2003, but the same has reached the chemical analysis laboratory only on 23.7.2003. The said delay has not been explained by the prosecution. ## 7. 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 Crl.R.P.No.4002 of 2010 5 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. 8. It is contended by the learned counsel for the revision petitioner that no arrest memo or arrest intimation was produced to prove the arrest of the petitioner. 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 Crl.R.P.No.4002 of 2010 6 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 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. This court in **Rafeeque** ## **v. Sub Inspector of Police, 2020 (4) KLT 188** has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this Court in **Udayan v. State of Kerala, 2023** Crl.R.P.No.4002 of 2010 7 **(1) KLT 371** . Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 9. The next contention raised by the petitioner is that there is no specimen seal affixed, nor the description of the seal affixed on the sample bottle is stated therein. Yet contention raised by the revision petitioner is that no forwarding note is produced and marked to prove that the sample has been forwarded to the chemical analysis laboratory for examination. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not Crl.R.P.No.4002 of 2010 8 produced and marked. 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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. 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 (in the present case no forwarding note is produced and marked), 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 Crl.R.P.No.4002 of 2010 9 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 **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** 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 **Sasidharan v.** **State of Kerala, 2007 (1) KLT 720** has considered and emphasized the legal 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 Crl.R.P.No.4002 of 2010 10 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. A similar view was taken by this Court in **Udayan v. State of Kerala, 2023 (1) KLT 371.** 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. 10. Further contention raised by the learned counsel for the revision petitioner is that there Crl.R.P.No.4002 of 2010 11 is an unexplained delay of almost 5 days in between forwarding the sample from the court to its receipt at the chemical analysis laboratory. In **Krishnadas v. State of Kerala, 2019 KHC 191,** this court has held that the unexplained delay in 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. In such circumstances, the prosecution ought to have examined the thondi clerk of the court or the guard who had taken the sample to the analyst so as to prove the tamperproof despatch of the sample to the laboratory. 11. 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 Crl.R.P.No.4002 of 2010 12 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. Sd/- **VIJU ABRAHAM, JUDGE** pm