Prathapan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** **Crl.Rev.Pet.No.458 OF 2006** **AGAINST THE JUDGMENT OF THE ADDL.SESSOINS JUDGE, FAST TRACK COURT-II, ALAPPUZHA DATED 23.12.2005 IN CRA 504/2003 WHEREBY THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE ADDL.ASST.SESSIONS COURT ALAPPUZHA DATED 12.11.2013 IN S.C.NO.13 OF 2002** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PRATHAPAN, S/O.RAMANKUTTY, THYPPARAMBIL VEEDU,ERIKKAVU MURI, KUMARAPURAM VILLAGE.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT MAYA M N -PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.06.2020, THE COURT ON 02.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.458/2006 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.458 of 2006 -------------------------------------------- Dated this the 2[nd] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.13/2002 on the file of the Court of the Assistant Sessions Judge, Alappuzha. 2. The prosecution case is that, on 29.01.2000, at about 11:20 hours, at the road in front of the Upper Primary School at the place in Erikkavu in Kumarapuram Village, PW3 Excise Inspector found the petitioner having in his possession a bottle containing 1.500 litres of arrack. 3. The trial court framed charge against the petitioner for the offences punishable under Sections 8(1) read with 8(2) and Crl.R.P.No.458/2006 3 55(a) of the Abkari Act. The petitioner pleaded not guilty and claimed to be tried. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P8 documents and MO1 and MO2 material objects. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offences punishable under Sections 8(1) read with 8(2) and 55(a) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. No separate sentence was imposed for the offence punishable under Section 55(a) of the Abkari Act. 6. The petitioner filed Crl.A.No.504/2003 before the Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against Crl.R.P.No.458/2006 4 the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the accused in this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW3 is the Excise Inspector who detected the offence. PW5 is the Preventive Officer who was in the excise party led by PW3. They have given evidence regarding the occurrence in detail. 10. PW1 and PW2 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P6 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample contained 35.85% by volume of ethyl alcohol. Crl.R.P.No.458/2006 5 12. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is not sufficient to find that the very same sample drawn from the liquid allegedly seized from the possession of the accused was sent for chemical analysis. 13. There is a specific recital in Ext.P1 seizure mahazar that PW3 took sample of the liquid from the bottle and that he sealed the sample bottle and also the bottle containing the remaining liquid and affixed label, bearing his signature and also the signature of the witnesses and the accused, on them. PW3 has given evidence also to that effect. 14. The evidence of PW3 is that he produced the articles and the accused and the records before PW6 Excise Inspector. PW6 had registered Ext.P7 crime and occurrence report. The description of the bottle containing the residue and the sample bottle given in Ext.P7 report would show that there was no seal or label on the bottle containing the residue and that there was no label on the sample bottle. PW6 has given evidence that he Crl.R.P.No.458/2006 6 produced the material objects before the court as per Ext.P8 property list. The description of the properties given in Ext.P8 property list shows that there was seal on the bottle containing the residue when it was produced before the court. This indicates that seal on it was affixed at the excise range office before it was produced before the court. The sample bottle had no label on it when it was produced it in the court. 15. The forwarding note prepared by the investigating officer for sending the sample for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of** Crl.R.P.No.458/2006 7 ## **Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 16. In the above circumstances, there is no assurance that the very same sample which was drawn at the spot of the occurrence by PW3 from the liquid seized from the possession of the accused was produced before the court and sent for chemical analysis. Absence of the copy of the forwarding note in evidence breaks the link between the sample allegedly drawn at the spot of the occurrence and the sample which was tested in the laboratory. 17. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569).** 18. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further Crl.R.P.No.458/2006 8 establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 19. The above mentioned vital aspects have not been taken into consideration by the trial court as well as the appellate court while appreciating the prosecution evidence. In such circumstances, the petitioner/accused is entitled to be acquitted. 20. Consequently, the revision petition is allowed. Conviction recorded against the petitioner/accused by the trial court under Sections 8(1) read with 8(2) and 55(a) of the Abkari Act and the sentence imposed on him by the trial court under Crl.R.P.No.458/2006 9 Section 8(1) read with 8(2) of the Abkari, which stand affirmed by the appellate court, are set aside. The petitioner/accused is found not guilty of the aforesaid offences and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**