Pushparajan v. The Excise Inspector & Another and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 CRL.REV.PET NO. 2227 OF 2007** **AGAINST THE ORDER/JUDGMENT CRA 241/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA** **SC 146/2000 OF SUB COURT / COMMERCIAL COURT (KALPETTA),** ## **SULTHANBATHERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** PUSHPARAJAN, S/O CHOKKU, ARREKANDY VEEDU, KUPPADI POST,, S.BATHERY TALUK, WAYANAD DISTRICT. BY ADVS. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI ## **RESPONDENT/RESPONDENTS/COMPLAINANT** 1 THE EXCISE INSPECTOR & ANOTHER S.BATHERY EXCISE RANGE,, (CRIME NO.6/99). 2 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** PP – SMT.NIMA JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL. R.P. No.2227 of 2007 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.2227 of 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 146 of 2000 on the file of the Assistant Sessions Court, Sulthan Bathery alleging commission of offences punishable under Sections 55(g) & 8(1) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 22.02.1999 at 3.45 pm, the revision petitioner/accused was found in possession of 4 litres of arrack at Marukara in Kuppadi Village and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 6 and Exts. P1 to P7 were marked and MO1 was identified. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six :3: CRL. R.P. No.2227 of 2007 months. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.241 of 2005 before the Additional Sessions Judge(ADHOC) I, Kalpetta, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned counsel for the revision petitioner raised the following contentions: The primary contention raised is that in Ext.P2 mahazar, no specimen seal is seen affixed nor the nature of the seal affixed on the sample is explained therein. Yet another contention raised is that in Ext.P5 forwarding note, the name of the guard through whom the sample was taken to the chemical analysis laboratory is not mentioned. It is further contended that a perusal of Ext.P5 would reveal that the sample was despatched to the chemical analysis laboratory on 13.04.1999, but a perusal of Ext.P6 chemical analysis report would reveal that the sample reached the laboratory only on 16.04.1999 and there is an unexplained delay of three days. On the basis of the same, the learned counsel for the revision petitioner would contend that in view of the said discrepancies, it is incumbent on the part of the prosecution either to examine the Property CRL. R.P. No.2227 of 2007 :4: Clerk or the Guard through whom the contraband was sent for chemical examination. Having not done that, it cannot be conclusively said that the sample that was taken at the time of seizure is the one that has reached the chemical analysis laboratory in a tamper-proof condition and therefore, the benefit of doubt will go in favour of the accused. 6. 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. 7. The primary contention raised is that in Ext.P2 mahazar, no specimen CRL. R.P. No.2227 of 2007 :5: seal is seen affixed nor the nature of the seal affixed on the sample is explained therein. 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. 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 **a** nd further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. 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 CRL. R.P. No.2227 of 2007 :6: 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 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 CRL. R.P. No.2227 of 2007 :7: the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. 8. Yet another contention raised is that in Ext.P5 forwarding note, the name of the guard through whom the sample was taken to the chemical analysis laboratory is not mentioned. It is further contended that a perusal of Ext.P5 would reveal that the sample was despatched to the chemical analysis laboratory on 13.04.1999, but a perusal of Ext.P6 chemical analysis report would reveal that the sample reached the laboratory only on 16.04.1999 and there is an unexplained delay of three days. On the basis of the same, the learned counsel for the revision petitioner would contend that in view of the said discrepancies, it is incumbent on the part of the prosecution either to examine the Property Clerk or the Guard through whom the contraband was sent for chemical examination. Having not done that, it cannot be conclusively said that the sample that was taken at the time of seizure is the one that has reached the chemical analysis laboratory in a tamper-proof condition and therefore, the benefit of doubt will go in favour of the accused. This court in a similar circumstance considered the impact of non-mentioning in the forwarding note, the name of the person through whom the sample was sent for analysis in _**Kumaran v. State of**_ CRL. R.P. No.2227 of 2007 :8: ## _**Kerala [2016 (4) KLT 718]**_ , paragraph 7 of the order reads as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard_ CRL. R.P. No.2227 of 2007 :9: _concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ This court 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 view of the above, I am of the opinion that in the abovesaid circumstance, it was incumbent on the part of the prosecution to have examined the thondy clerk and the person through whom the sample was sent for chemical analysis to explain the delay and the safe custody of the contraband till the same was sent from the court for chemical analysis. 9. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and CRL. R.P. No.2227 of 2007 :10: 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 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** sm/