R. Abdul Rahiman v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` SATURDAY, THE 30[TH] DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945 CRL.REV.PET NO. 3762 OF 2010 AGAINST THE ORDER/JUDGMENT CRA 293/2009 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD SC 444/2007 OF ASSISTANT SESSIONS COURT, KASARAGOD ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` R.ABDUL RAHIMAN S/O.DAWOOD, ISLAM HOUSE,, PARINGADI WEST, MANGALPADY P.O.,, KASARAGOD TALUK. BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA ``` ``` BY THE DIRECTOR OF PUBLIC PROSECUTIONS,, HIGH COURT OF KERALA, ERNAKULAM,, (C.R.NO.4/2003 OF KUMBLA EXCISE RANGE). BY P.P., SRI. RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 3762 of 2010 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 3762 of 2010 ============================ Dated this the 30[th] day of September, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 444 of 2007 alleging commission of offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that, on 28.01.2003 at about 12.30 pm, the accused was found transiting 10 bottles (each containing 750 ml) of colombia whisky and 24 bottles (each containing 375 ml) of colombia whisky in a scooter bearing registration No.BLC-1353 near the Bankara-Manjeshwar check post in contravention of the provisions of the Kerala Abkari Act and thereby the accused has committed the alleged offence. 3. The prosecution in support of their case examined PWs 1 to 4 and Exts P1 to P9 were marked and MOs 1 to 4 were 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 rigorous imprisonment for a further Crl.R.P. No. 3762 of 2010 :3: period of six months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.293 of 2009 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The revision petitioner has raised the following contentions. Though arrest memo has been produced, no arrest intimation is produced and marked and no evidence was adduced on behalf of the prosecution to show that the arrest has been intimated to any near relative of the petitioner. Another contention raised by the revision petitioner is regarding the delay in completing the investigation. The occurrence was on 28.01.2003, but the investigation was started only on 19.10.2006. Ext P8 chemical analysis report was ready on 26.08.2003, but the complaint was filed only on 15.11.2006. The learned Counsel for the revision petitioner would submit that there is an unexplained delay of almost three and half years to complete the investigation, which is fatal to the case of the prosecution. It is the further contention of the learned Counsel for the revision petitioner that in Ext P1 seizure mahazar there is no specimen seal affixed nor the description of the seal affixed on the samples is mentioned in the seizure Crl.R.P. No. 3762 of 2010 :4: mahazar. In the cross-examination of PW 1, it is admitted that in MO3 to MO4 series of contraband produced before the Court, no label is seen affixed, but without the label, the PW 1 identified the material objects. The learned Counsel for the revision petitioner submitted that without the label, the identification of the material objects by PW 1 is highly doubtful. 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. As regards the contention of the revision petitioner Crl.R.P. No. 3762 of 2010 :5: that the arrest itself is doubtful due to the non-production of necessary documents to prove the same, it is to be taken note that 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 of arrest. This court in **Baburaj’s** case cited supra has held that the nonproduction 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. Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 8. The next contention of the learned Counsel for the Crl.R.P. No. 3762 of 2010 :6: revision petitioner is that in Ext P1 seizure mahazar there is no specimen seal affixed nor the description of the seal affixed on the samples is mentioned in the seizure mahazar. 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. In this case, no specimen seal is seen affixed in the seizure mahazar. 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 **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 Crl.R.P. No. 3762 of 2010 :7: 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 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 cited 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 Crl.R.P. No. 3762 of 2010 :8: 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. 9. It has come out in evidence of PW1 that in MO3 to MO4 series of contraband produced, no label is seen affixed but without the label the PW1 identified the material objects, which according to the revision petitioner is highly doubtful. In **Sasidharan’s** case cited supra **,** this court in paragraph 10 of the judgment held as follows: _“10. There is yet another infirmity in the evidence. While according to PWs 1 and 2 and the recitals in Ext.P1 mahazar, the seized can was sealed and labelled, the property list does not show that the can which was produced in court was sealed. PW4 has admitted that in Ext.P4 filed by him in court there is no mention that the can which was seized was either sealed or labelled. M.O.1 can which was produced in court from the custody of PW4 was an empty can on which there was no seal or label at all. Every such can will look alike and it is really surprising that PWs.1 and 2 who were testifying before court after 5 years of detection had no difficulty to identify M.O.1 as the can which was allegedly seized from the_ Crl.R.P. No. 3762 of 2010 :9: _appellant. It is not possible to accept the identification of the can, by such officers who are not possessed of super-human powers of recollection.”_ 10. Yet another contention raised by the petitioner is regarding the inordinate unexplained delay in completing the investigation. The occurrence was on 28.01.2003, but the investigation was started only on 19.10.2006. Ext P8 chemical analysis report was ready on 26.08.2003, but the complaint was filed only on 15.11.2006. The learned Counsel for the revision petitioner would submit that there is an unexplained delay of almost three and half years to complete the investigation, which is fatal to the case of the prosecution. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight_ Crl.R.P. No. 3762 of 2010 :10: _months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not_ Crl.R.P. No. 3762 of 2010 :11: _known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 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 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. Crl.R.P. No. 3762 of 2010 :12: 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** sbk/-