Raju Pongaladikkara v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** **CRL.REV.PET NO. 4506 OF 2006** **AGAINST THE ORDER/JUDGMENT CRA 51/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA SC 1/2001 OF ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL** **COURT, PATHANAMTHITTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** RAJU PONGALADIKKARA, PANDALAM THEKKEKARA VILLAGE. BY ADV SRI.S.HARIKRISHNAN ## **RESPONDENT/RESPONDENTS/COMPLAINANT:** 1 STATE THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE EXCISE INSPECTOR ADOOR RANGE. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP – SRI. RENJIT GEORGE **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.4506 of 2006 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.4506 of 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 01 of 2001 on the files of the Asst. Sessions Court, Pathanamthitta, alleging commission of offences punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 22.08.1998 at about 11.30 am, the excise party found the revision petitioner/accused in possession of 2 litres of illicit arrack in a plastic jerry can of 5 litres of capacity along the Keerukuzhy-Chandanappally public road at Mamood Junction and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 5 and Exts. P1 to P6 were marked and MO1 was identified. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of three years and to pay a fine of :3: CRL. R.P. No.4506 of 2006 Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years. 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.51 of 2005 before the Additional Sessions Court (Adhoc) Fast Track Court-III, Pathanamthitta, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. I have gone through the judgment of the lower courts, depositions of the witnesses and the documents produced in the present case, which revealed the following facts and circumstances. A perusal of Ext.P2 mahazar will not show when and where the sample was taken. A perusal of Ext.P5 requisition form for sending the sample for chemical examination revealed that, no sample seal is seen affixed. Furthermore, the person through whom the sample was sent for examination is not mentioned in Ext.P5 requisition form and thondy clerk or the excise guard through whom the sample was sent for chemical examination is not examined. A perusal of the trial court CRL. R.P. No.4506 of 2006 :4: judgment will reveal that based on Ext P5 requisition letter the sample was taken from the contraband article by the court. 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. A perusal of Ext.P2 mahazar will not show when and where the sample was taken. In Ext.P5 requisition form for sending the CRL. R.P. No.4506 of 2006 :5: sample for chemical examination, no sample seal is seen affixed. 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. 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 sample was taken on the spot and in Ext P5 requisition letter, no specimen seal is seen affixed. 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 CRL. R.P. No.4506 of 2006 :6: 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 _**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].**_ In the present case admittedly no sample was taken on the spot. 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 _**Sasidharan**_ ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various :7: CRL. R.P. No.4506 of 2006 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 the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. 8. It is seen that the person through whom the sample was sent for examination is not mentioned in Ext P5 requisition form and thondy clerk or the excise guard through whom the sample was sent for chemical examination is not examined. This court in _**Kumaran v. State of Kerala [2016 (4) KLT 718]** ,_ has held in paragraph 7 of the judgment 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_ CRL. R.P. No.4506 of 2006 :8: _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 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_ CRL. R.P. No.4506 of 2006 :9: _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.”_ Therefore, the non-mentioning in Ext P5 the name of the person through whom the sample was sent for examination coupled with the fact that the thondy clerk or the guard through whom the sample was sent for examination, is not examined, is fatal to the prosecution case. 9. Yet another aspect noticed from a perusal of the trial court judgment is that based on Ext P5 requisition letter, the sample was taken from the contraband article by the court. This court in _**Baburaj’**_ s case cited supra has held that drawing the samples and sealing the same are acts within the exclusive province of the police official or the excise official concerned and the magistrate is not empowered to draw samples from the contraband produced before him by the detecting officer and the said act of drawing samples by the court will go against the prosecution case. A similar view was taken in _**Smithesh v. State**_ CRL. R.P. No.4506 of 2006 :10: _**of Kerala [2019 (2) KLT 974]** ._ In view of the above, it is to be held that the drawing of sample was not in accordance with law. 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 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/