Prasannan @ Kunjamon v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023/30TH BHADRA, 1945 CRL.REV.PET NO.811 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 19.10.2006 IN CRL.APPEAL NO.26/1999 OF ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-I, THIRUVANANTHAPURAM C.C.NO.1051/1996 OF THE JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS -II, ATTINGAL ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED NO.1:`** ``` PRASANNAN @ KUNJUMON S/O.GOPINATHAN, VALIYAVILA VEEDU, KODUVAZHANOOR DESOM, KODUVAZHANOOR VILLAGE, CHIRAYINKEEZH TALUK. ``` ``` BY ADVS. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BYSRI.M.C.ASHI, SR.PUBLIC PROSECUTOR`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P.No.811 of 2007 2 ## **`VIJU ABRAHAM J.`** ``` -------------------------------------------- ``` ``` Crl.R.P.No.811 of 2007 -------------------------------------------- Dated this the 21[st] day of September, 2023 ``` ## **`J UDGMENT`** ``` Revision petitioner is the first accused in C.C.No.1051 of 1996 on the file of the Judicial First Class Magistrate Court-II, Attingal alleging commission of offence punishable under Section 55(a) of the Abkari Act. ``` ``` 2. The prosecution case is that on 08.11.1996 at 6 p.m, the petitioner was found to be in possession of 4 litres of arrack in a plastic can at Poikakada Market Junction in Koduvazhanoor Village and that he was in possession of the same in violation of the Abkari Act. ``` **`3. To prove the prosecution case, PWs.1 to 4`** Crl.R.P.No.811 of 2007 3 ``` were examined and marked Exts.P1 to P3 and MOs.1 & 2. ``` ``` 3. PW1 is the Excise Circle Inspector, who detected the offence, PW2 is the Excise Inspector, Attingal, who was on patrol duty along with PW1, PW3 is the attestor to mahazar, who turned hostile to the prosecution and PW4 is the Excise Inspector, Chirayinkeezh Range, who laid charge before Court. ``` ``` 4. The 2[nd] accused was found not guilty and he was acquitted and the trial Court found the 1[st] accused, who is the revision petitioner herein, guilty of the charges levelled against him and convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. ``` Crl.R.P.No.811 of 2007 4 ``` 5. Aggrieved by the said conviction and sentence, the revision petitioner filed an appeal as Crl.Appeal No.26 of 1999 before the Additional District & Sessions Judge [Fast Track Court-I], Thiruvananthapuram and the Appellate Court dismissed the appeal confirming the conviction and sentence imposed by the Lower Court. ``` ``` 6. The occurrence was on 08.11.1996, going by the seal affixed by the learned Magistrate in Ext.P1 mahazar, the same was received only on 11.11.1996. Further that, no property list is seen produced and marked before the trial Court. In Ext.P1 mahazar, there is no specimen seal affixed and further that the forwarding note, whereby the alleged contraband was forwarded to the Chemical Analyst Laboratory is not produced and marked. The contention of the learned counsel for the revision petitioner is that in the absence of the seal in ``` Crl.R.P.No.811 of 2007 5 ``` Ext.P1 mahazar and the non-production of forwarding note, it cannot be conclusively said that the sample, which was drawn from the alleged contraband seized, has reached the chemical examiner in a tamper proof condition. ``` ``` 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 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 ``` Crl.R.P.No.811 of 2007 6 ``` 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. The occurrence was on 08.11.1996 and going by the seal affixed by the learned Magistrate in Ext P1 mahazar, the same was received only on 11.11.1996 and there is an unexplained delay of almost 4 days. Further, no property list is seen produced and marked. This Court, in Ramachandran v. State of Kerala (2021 (1) KLT 793, has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the Court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no ``` Crl.R.P.No.811 of 2007 7 ``` evidence with regard to the safe custody of the sample till its production before the Court. The non-production of the property list before the trial Court will also be fatal to the prosecution case. ``` ``` 9. A perusal of Ext P1 mahazar would reveal that no specimen seal is affixed on the same and further that the forwarding note is not 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. In the present case, the forwarding note by which ``` Crl.R.P.No.811 of 2007 8 ``` the sample of the contraband was sent for chemical analysis is also not produced and marked. In Natarajan 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 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 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 in Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744. The Apex Court in Vijay Pandey v. State of U.P., AIR 2019 SC 3569 has held that mere ``` Crl.R.P.No.811 of 2007 9 ``` 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. ``` ``` 10. The above vital aspects were not considered by the Courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the Court below cannot be sustained. ``` ``` In the result, the above revision petition stand allowed, setting aside the conviction and ``` Crl.R.P.No.811 of 2007 10 ``` sentence passed by the Courts below against the revision petitioner/accused and he is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith. ``` **Sd/-** ``` VIJU ABRAHAM JUDGE ``` ``` sp/21/09/2023 ```