P.T. Vidya Sagar & Binoj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942 Crl.Rev.Pet.No.274 OF 2009** **CRA 163/2003 OF THE ADDITIONAL SESSIONS COURT,THALASSERY CC 225/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOOTHUPARAMBA** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED 1 AND 2** **1 P.T.VIDYA SAGAR AGED 44 YEARS, KUZHUPPILLY VILLAGE, KOCHI. 2 BINOJ S/O.BABU AGED 22 YEARS MOOTHAKUNNAM, THURUTHIPURAM DESOM,, KANAYANNOOR TALUK, ERNAKULAM.** **BY ADVS. SRI.GEO PAUL SRI.JOEL JOSEPH SRI.SANDEEP M.B SRI.C.R.PRAMOD SRI.K.V.REJANISH SRI.SANU MATHEW** ## **RESPONDENT/RESPONDENT/COMPLAINANT** **STATE OF KERALA** **EXCISE INSPECTOR, PERAVOOR,, BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **SR.PP - SRI. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.5.2020, THE COURT ON 03.06.2020 PASSED THE FOLLOWING:** Crl.R.P.274/2009 2 ## **ORDER** ## **Dated : 3[rd] June, 2020** - 1.This revision petition has been filed against the concurrent finding of guilt against the accused persons in crime No.15/1997 of Peravoor Excise Range,Charge sheeted under Sec.55(a) of the Abkari Act. - 2.The prosecution case in brief is that on 1.4.1997 while PW4, the preventive officer, attached to Peravoor Excise Range and party, were conducting patrolling duty, got a reliable information regarding transport of liquor. After sending Ext.P4 search memorandum duly to the court,he conducted search in Premier Padmini Fiat car bearing registration No.KR-LD 4730 which was coming from Koothuparamba side. First Accused was driving the car and second accused was found inside the car on the rear seat. On inspection, 71 bottles of McDowell No.1 brandy of 750 ml each Crl.R.P.274/2009 3 in a specifically sealed cabin, in the dikki and 49 bottles of IMFL of the same category of 750 ml each and 24 bottles of IMFL of the same category were seized from inside the car. Bottles were not having the seal and sticker of KSBC and on enquiry it was revealed that they bought bottles from Mahi and hence they were arrested and contraband articles were seized and the mahazar was prepared. Thereafter Ext.P5 search list was also prepared. Since all the bottles were identical, 180 ml. sample was taken from one of the bottles and sealed. Thereafter accused were arrested at the spot and Ext.P1 mahazar was prepared. Pw4 produced the accused and the contraband articles before PW3, the then Excise inspector of Peravoor Excise range and after verifying the records, he registered crime No.15/1997 and Ext.P3 is the occurrence report. Thereafter PW2, the Excise inspector subsequently took charge of the concerned Range office and Crl.R.P.274/2009 4 prepared the forwarding note which is marked as Ext.P2 and sent the sample for analysis. After verifying the records, he filed the charge-sheet before the court. - 3.On the side of the prosecution, PW1 to PW5 were examined and Exts.P1 to P6 were marked. MO1 series (127 bottles) were also identified and marked. After the closure of the prosecution evidence accused were questioned under Sec.313 Cr.P.C. They denied all the incriminating facts and circumstances put to them. DW1 was examined from the side of the accused and Ext.D1 the death certificate of the father was also marked. Thereafter on hearing both sides, the trial Court found the accused persons guilty under Sec.55(a) of the Abkari Act. The first accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.25,000/- in default to undergo simple imprisonment for five Crl.R.P.274/2009 5 - months under Sec.55(a) of the Act and the second accused is also sentenced to undergo simple imprisonment for six months and to pay fine of Rs.25,000/- in default to undergo simple imprisonment for three months under Sec.55(a) of the Act. Against the conviction and sentence passed by the trial Court, Crl.Appeal 163/2003 was filed before the Court of Sessions, Thalassery and the Additional Sessions Judge, Thalassery as per the impugned judgment, dismissed the appeal confirming the conviction and sentence passed against the revision petitioners/accused No 1 and 2. Aggrieved by the same, the revision petitioners came up in revision for the various grounds stated in the memorandum of revision. - 4.Lower court records were called for. Heard Smt.Radhika, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Public Crl.R.P.274/2009 6 Prosecutor. 5.Pw4 is the detecting officer who was the preventive officer attached to Peravoor Excise range on 10.4.1997, stated about the seizure of the contraband articles at Kommeri from a Premier Padmini Fiat Car at 5.15 pm coming from Koothuparamba area. He stated that the first accused was driving the car and the second accused was found on the rear seat of the car and on inspecting the vehicle, secret cases were found in the front seat, dikki and also on the rear seat. Total 144 bottles were found without the seal and sticker of KSBC. Thereafter he prepared the search list, Ext.P5, and sample was taken from one of the bottles since all the bottles were identical. The remaining bottles were also labelled and accused were arrested. Ext.P1 is the mahazar prepared by him. He entrusted the accused and the contraband articles Crl.R.P.274/2009 7 with Excise inspector,Pw3. PW1 and PW5 are two witnesses cited in the mahazar and both of them admitted their signatures in the mahazar and PW1 deposed that he signed in a mahazar prepared by the excise party.PW5, the other witness in the mahazar, though admitted initially that he signed for the seizure of brandy, further he deposed that he had not seen the seizure and hence he was declared as hostile by the prosecution. - 6.PW3 was the Excise Range inspector at Peravoor Excise range office on 10.4.1997 and he deposed that at about 5.30 pm on that day, PW4 and party produced the accused along with the contraband article, before him at the office and on examining the case records and the property, he registered the crime and Ext.P3 is the occurrence report. He produced the accused and the property excluding the vehicle before the court. Crl.R.P.274/2009 8 - 7.PW2 was the Excise inspector who subsequently took charge of the Peravoor Excise range office and forwarded the sample for Chemical examination and Ext.P2 is the copy of the forwarding note and thereafter he verified the records and filed the charge. - 8.The learned counsel for the revision petitioners assailed the conviction and sentence passed against the revision petitioners on the following grounds. - (i).The inordinate delay in sending the sample for chemical examination. - (ii).Failure to prove the identity of the sample sent for examination to the laboratory. - 9.I will discuss the points one by one. Crl.R.P.274/2009 9 10. Point No.(i). -Admittedly the case was detected by PW4 and party on 10.4.1997, and the sample has been sent for analysis as per Ext.P2 forwarding note on 3.5.1999. On perusing Ext.P2 copy of the forwarding note, it is seen that the Excise inspector has signed the same on 19.4.1999 and it has been despatched on 3.5.1999. Obviously it is after two years of the detection of the crime. PW3, the Excise inspector before whom the accused and the contraband articles were produced by PW4 the detecting officer, though registered Ext.P3 occurrence report and said to have produced the accused and contraband before the court, no steps was seen to have taken by him for forwarding the sample for chemical examination. So more than two years delay caused in sending the sample for chemical examination will no doubt, cause prejudice to the accused as per the settled position of law. Crl.R.P.274/2009 10 11. In this context the learned counsel for the revision petitioners took my attention to **Suresh v. Excise Inspector, Pathanamthitta and Another (2019 KHC 377)** wherein while dealing with Sec.8 of the Abkari Act, it has been held that when there is delay in forwarding the sample and no explanation is offered about the possession of arrack and the delay in forwarding the sample, accused is entitled to get the benefit of doubt. In that case also the seizure was made on 14.7.1998 and the sample was forwarded to the Chemical Examiner's laboratory on 19.6.2001. In the said context, the court held that there is inordinate delay in forwarding the sample to the Chemical Examiner's Lab and it is the duty of the prosecution to show that the arrack alleged to be seized from the possession of the accused/appellant had ultimately reached the Chemical Examiner's laboratory in a tamper proof condition. It is also held that no conviction can Crl.R.P.274/2009 11 be entered against the accused in a prosecution unless it is proved that the sample which was analyzed in the Chemical examiner's laboratory was the very sample drawn from the contraband liquor alleged to be found in the possession of the accused. 12. In this case though the sample was taken on 10.4.1997, as per the evidence of PW2 and Ext.P2 the sample was sent for chemical examination on 3.5.1999, ie, after two years. 13. The learned counsel also took my attention to **Vikraman v. State of Kerala (2018 KHC 3177)** wherein it has been held that when there is no explanation for delay of three days in producing the properties before the court, the possibility of tampering cannot be ruled out. It was also taken into account that PW4, the detecting officer has no explanation for the delay of three Crl.R.P.274/2009 12 days in producing the sample before the court and hence it was found that in such a situation the possibility of tampering with the property cannot be ruled out. So on that ground along with some other grounds regarding the identity of the accused and the specimen seal affixed (which will be dealt with later), accused was held to be entitled for the benefit of doubt. 14. In the present case though detection of the crime was on 10.4.1997 the sample was sent for analysis by the successor in office of PW3, the excise inspector on 3.5.1999. There is no explanation either from PW4, the detecting officer, or PW3, the excise inspector, who was in charge of the excise office at the time of detection as to why the long delay has been caused in sending the sample for analysis. PW2 the excise inspector, who subsequently took charge of the excise office and sent the sampel Crl.R.P.274/2009 13 for analysis also did not offer any explanation for the delay caused in sending the sample for analysis. So the benefit of doubt in that regard definitely goes to the revision petitioners. 15. Point NO.(ii) – With regard to the identity of the sample sent as the one seized from the accused persons also the learned counsel for the revision petitioners vehemently contends. It is to be noted in this context that PW4 the detecting officer during his evidence deposed that he took sample from one of the bottles out of 144 bottles of 750 ml each containing liquor, since all the bottles were identical. He would also depose that 180 ml. sample was taken and it was sealed and the remaining bottles were also sealed and labels were also affixed. But obviously in the mahazar he has not affixed the specimen seal affixed on the sample bottle. Ext.P2 forwarding note contained a sample seal Crl.R.P.274/2009 14 but admittedly it has been prepared on 19.4.1999 almost after two years of the detection of the crime. So definitely it would not be the sample seal of PW4 who detected the crime and affixed the seal on the sample bottle. Whether the seal found in Ext.P2 is the sample seal affixed by PW4 the detecting officer is not brought out and prosecution evidence is completely in dark with regard to the sample seal affixed by PW4. If at all he had affixed the sample seal either in Ext.P1 mahazar or in Ext.P5 search list, it could have been ascertained whether the sample seal found on Ext.P2 forwarding note is the specimen seal affixed on the sample bottle. So that would definitely create doubt with regard to the identity of the sample sent for analysis. 16. In this context the learned counsel for the revision petitioners took my attention to **Suresh's** case referred supra wherein it has been Crl.R.P.274/2009 15 held that lapses from the side of the investigating officer to prove that sample was properly forwarded to the Chemical Examiner's Laboratory would enable the accused/appellant for seeking benefit of doubt. It was also a case in which the sample was taken and seizure was made on 14.7.1998 and the sample was sent to the Chemical Examiner's Laboratory on 19.6.2001. In that case it has also been found that there is no evidence before the court to show that PW1 the preventive officer, at the time of seizure, has properly put his seal and specimen impression to identify the sample. It was also held that it is the duty of the prosecution to show that the contraband alleged to have seized from the possession of the appellant had ultimately reached the chemical examiner's laboratory in a tamper proof condition. Hence accused therein was held to get benefit of doubt. Crl.R.P.274/2009 16 17. On the same point the learned counsel took my attention to **Vikraman v. State of Kerala referred** supra wherein also it has been found that there are three days delay in producing the sample before the court and the copy of the forwarding note does not contain the specimen seal affixed in the sample. In the said circumstances it was found that there is nothing to connect the accused with the crime. 18. It is also relevant in this context to quote **Vengadan Narayanan @ Achootty v. State of Kerala [2019 KHC 4922] wherein** it has been held that seizure of large quantity of liquor from the possession of a person is not sufficient to establish that he had committed the offence under Section 55(a) of Section 8(1) and (2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the Crl.R.P.274/2009 17 prosecution relies upon the 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. The prosecution has to prove all the links starting from the seizure of the sample, till it reached the hands of chemical examiner. 19. In this case also as discussed earlier, PW4, the detecting officer, who had taken the sample at the spot from one of the bottles did not even state that he has affixed his specimen seal on the bottle or nothing to indicate the affixture of sample seal in Ext.P1 mahazar or Ext.P4 search list is brought out. It has also come out that it is after two years the successor in office, PW2 forwarded the sample for examination to the chemical examiner's Lab. Though a seal seen to be Crl.R.P.274/2009 18 affixed in Ext.P2 forwarding note, there is nothing to infer that it is the specimen seal affixed on the sample bottle by Pw4. The chemical examiner's report which is marked as Ext.P6 also does not give any indication regarding the sample seal affixed on the sample bottle and in the forwarding note. So as has been rightly contended - by the learned counsel for the revision petitioners there arose a real doubt as to whether the sample taken and sealed by PW4 is the one that has been sent for chemical analysis as per Ext.P2 forwarding note by PW2. In other words identity of the sample sent is suspicious. So benefit of doubt on that account goes to the revision petitioners. 20. The learned counsel for the revision petitioners in this context also took my attention to **Ravi v. State of Kerala (2018 (5) KHC 352)** wherein there was a delay of four days Crl.R.P.274/2009 19 in producing the contraband articles before the court. In that context it was held that the investigating officer has to explain that the contraband articles were produced before the court in tamper proof condition and in the absence of satisfactory explanation by the prosecution regarding the cause of delay, even delay of one day is vital. But that was a case in which delay has been caused in producing the contraband article before the court. But in the present case the crime was detected on 10.4.1997 at about 5.15 pm and immediately on the same day, the contraband articles were produced before the court at about 5.30 p.m. So actually there is no delay in producing the contraband articles before the Court in this case. But obviously delay has been caused in forwarding the same to the chemical examiner's laboratory, ie. for more than two years. Crl.R.P.274/2009 20 21. Though the learned counsel for the revision petitioners would further contend that though 144 bottles alleged to have been seized from the accused persons only 127 bottles were produced at the time of examination of Pw4 and that will caste doubt with regard to the seizure of the contraband articles. But it is to be noted that Inspector filed report about the missing of the remaining bottle. It is also to be noted that Ext.P4 property list would show that along with the production of the accused before the court on the same day all the 144 bottles and the sample bottle have been produced before the court and item No.1 i.e the 144 bottles have been returned for safe custody of Peravoor Excise Inspector. It is further to be noted that though the case was detected on 10.04.1997 the witnesses were examined only in the year 2002. so the passage Crl.R.P.274/2009 21 of time might have resulted in misplacement of remaining bottles. So that will not cause any doubt with regard to the seizure of the articles from the revision petitioners. 22. So on an evaluation of the facts and circumstances, as has been rightly contended by the learned counsel for the revision petitioners, the inordinate unexplained delay in sending the sample for chemical analysis and absence of proper identification of the sample sent as from the contraband article seized from the revision petitioners would enable the revision petitioners to claim benefit of doubt. So the conviction and sentence passed by the courts below without adverting to the above material irregularities and illegalities necessitates an intervention at the instance of this court. 23. In the result, revision petition allowed, the Crl.R.P.274/2009 22 conviction and sentence passed in C.C.225/1999 by the JFCM, Koothuparamba which is confirmed by the Additional Sessions Judge, Thalassery in Crl.Appeal No.163/2003 is hereby set aside and revision petitioners/accused Nos.1 and 2 are acquitted. Bail bond executed by them shall stand cancelled and they are set at liberty. Sd/- ## **M.R.ANITHA, Judge** Mrcs/27.5.