Radhamoni w/o K R Sivan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 CRL.REV.PET NO. 1869 OF 2013 AGAINST THE ORDER/JUDGMENT SC 71/2011 OF SUB COURT, THIRUVALLA CRA 46/2012 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL. M.A.C.T.** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** RADHAMONI W/O.K R SIVAN, KOZHIMALA HOUSE, VALLAMKULAM, KIZHAKKEMURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DIST BY ADV SRI.AJITH MURALI ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031 ## **OTHER PRESENT:** PP - M.C.ASHI **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.1869 of 2013 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **CRL. R.P. No.1869 of 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 71 of 2011 on the files of Assistant Sessions Court, Thiruvalla alleging commission of offences punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 11.12.2007 at 4.45 pm, the Inspector of Excise, Thiruvalla and his party, during the course of their patrol duty, found the revision petitioner in possession of 2 litres of arrack and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 7 and Exts. P1 to P12 were marked and MO1 was identified. The trial Court found the accused guilty and convicted her to undergo rigorous imprisonment for a period of three 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 months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial CRL. R.P. No.1869 of 2013 :3: Court, an appeal was preferred as Crl.Appeal No.46 of 2012 and the appellate court modified the sentence by reducing the same to undergo rigorous imprisonment for 1 year and to pay a fine of Rs.1,00,000/- and in default of which, to undergo simple imprisonment for one month. 5. The learned counsel for the revision petitioner raised the following contentions: One of the specific contentions raised is that the name of the Excise Guard through whom the sample was forwarded to the Chemical Analysis Laboratory does not find a place in Ext.P10 forwarding note. In Ext.P10, it is also to be seen that there is no date mentioned to show when the signature of the learned Magistrate was affixed so as to identify within what date the sample was forwarded to the chemical analysis laboratory and reached there from the date of forwarding by the learned magistrate. The petitioner relies on the Judgment in _**Kumaran P. v. State of Kerala [2016(5) KHC 632]**_ in support of her contention _**.**_ Yet another contention raised is regarding the delay in completion of the investigation in as much as the date of occurrence was on 11.12.2007, and the final report was filed only on 14.07.2008 and the said inordinate delay is not explained. CRL. R.P. No.1869 of 2013 :4: 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 first contention raised is that the name of the Excise Guard through whom the sample was forwarded to the Chemical Analysis Laboratory does not find a place in Ext.P10 forwarding note. In Ext.P10, it is also to be seen that there is no date mentioned to show when the signature :5: CRL. R.P. No.1869 of 2013 of the learned Magistrate was affixed so as to identify within what date the sample was forwarded to the chemical analysis laboratory and reached there from the date of forwarding by the learned magistrate. In _**Kumaran P**_ .'s case cited (Supra) _**,**_ paragraph 7 of the said judgment 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_ CRL. R.P. No.1869 of 2013 :6: _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 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_ CRL. R.P. No.1869 of 2013 :7: _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._ In the said circumstance coupled with the nonexamination of the thondi clerk or the exercise guard concerned, is fatal to the case of the prosecution. 8. Yet another contention raised is regarding the delay in completing the investigation. Since the occurrence was on n 11.12.2007, and the final report was filed on 14.07.2008, I am of the opinion that there is no undue delay in filing the final report as contended by the learned counsel for the revision petitioner. 9. In view of the fact that the name of the Excise Guard and the date on which the learned magistrate has put her initial on the forwarding note, it was incumbent on the part of the prosecution to examine the Excise Guard or the thondi clerk to prove the tamper proof despatch of the sample to the CRL. R.P. No.1869 of 2013 :8: laboratory, which admittedly has not been done in the present case. 10. 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. 11. 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 her. The bail bond shall stand cancelled and she 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/