Rajesh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 3161 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 380/2009 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA SC 144/2006 OF THE COURT OF ASST. SESSIONS JUDGE, ALAPPUZHA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` RAJESH ``` ``` AGED 34 YEARS, S/O.RAJAN, PANACKALPURACKAL, BEACH WARD, ALAPPUZHA. ``` ``` BY ADV SRI.S.SHANAVAS KHAN ``` ## **`RESPONDENT/RESPONDENT/STATE:`** ``` THE STATE OF KERALA ``` ``` REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY P.P., SRI. M.C. ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 3161 of 2010 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 3161 of 2010 ============================ Dated this the 10[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 144 of 2006 on the file of the Court of Asst. Sessions Judge, Alappuzha registered alleging commission of offence punishable under Section 55(i) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 28.10.2004 at about 2 pm, the Excise Inspector and his party saw the revision petitioner engaged in selling Indian Made Foreign Liquor and for the said purpose he was found in possession of 3.650 litres of aristocratic XXX rum and thereby the accused has committed the alleged offence. 3. The prosecution in support of their case examined PWs 1 to 6 and Exts P1 to P6 were marked and MO1 to MO5 were identified. On the side of the accused, DWs 1 and 2 were examined. The trial Court found the accused guilty and convicted him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a Crl.R.P. No. 3161 of 2010 :3: further period of 45 days. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.380 of 2009 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned Counsel appearing for the revision petitioner raised the following contentions assailing the conviction and sentence passed by the Courts below. It is contended that in Ext P3 seizure mahazar, no specimen seal is seen affixed nor the description of the nature of the seal affixed on the samples is also not been mentioned there. The learned Counsel would further submit that even the specimen of the seal has not been produced before the Court. It is further contended that no forwarding note is produced and marked. The revision petitioner would contend that all these aspects are fatal to the prosecution case. 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** Crl.R.P. No. 3161 of 2010 :4: **(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. Let me consider the contention raised by the learned counsel for the revision petitioner. It is contended that in Ext P3 seizure mahazar, no specimen seal is seen affixed nor the description of the nature of the seal affixed on the samples is also not been mentioned there. The learned Counsel would further submit that even the specimen of the seal has not been produced before the Court. It is further contended that no forwarding note is produced and marked. 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 Crl.R.P. No. 3161 of 2010 :5: tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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 the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. 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 (in the present case no forwarding note is produced and Crl.R.P. No. 3161 of 2010 :6: marked), 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 **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** This court in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** has 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 supra held that when Crl.R.P. No. 3161 of 2010 :7: 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. 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. 8. 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. Crl.R.P. No. 3161 of 2010 :8: 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** sbk/-