Raju v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 2693 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 108/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 226/2000 OF ASSISTANT SESSIONS ``` ``` COURT (KALPETTA), SULTHAN BATHERY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` RAJU KADIMVEL EAST POST, DEVARANGAM TALUK, TAMIL NADU. ``` ``` BY ADV SRI.T.M.ABDUL LATHEEF ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.`** - **`2 EXCISE INSPECTORMANANTHAVADY RANGE. BY ADV PUBLIC PROSECUTOR`** ``` SRI. RENJIT GEORGE, SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the 2[nd] accused in S.C. No.226 of 2000 on the file of Assistant Sessions Judge, Sulthan Bathery assailing the judgment in Crl.Appeal No.108 of 2005 on the file of Additional Sessions Judge (Adhoc-II), Kalpetta, which upheld his conviction and sentence under Sections 55(a) and 55(b) of the Abkari Act. 2. The prosecution case is that, on 09.09.1997 at 6.15 a.m., the revision petitioner was found engaged in brewing illicit arrack along with the 1[st] accusedLakshmikutty, in a shed attached to her house at Periya Village, Mananthavady. PW1, the Excise Circle Inspector, Mananthavady detected the offence. On getting reliable information that the 1[st] accused-Lakshmikutty was brewing illicit liquor in her house, after sending search memo to court, the excise party led by PW1 proceeded to her house, and saw smoke coming out from a shed attached to her house. On entering the shed, they found the revision petitioner in that shed burning firewood for distilling illicit ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** liquor. Distilled arrack, along with wash and utensils used were seized from the spot and the accused were arrested. 3. After completing all the legal formalities, the accused persons along with the articles seized were produced before the Excise circle office, where crime and occurrence report was registered. Thereafter, the articles and the accused were produced before the Excise Range Office, Mananthavady for further proceedings. PW8 investigated the case and laid charge sheet against the accused persons under Sections 55(a), (b) and (g) of the Abkari Act. 4. On appearance of the accused before the trial court, charge was framed under Sections 55(a) and 55(b) of the Abkari Act, to which, they pleaded not guilty, and claimed to be tried. PWs.1 to 8 were examined, Exts.P1 to P4 were marked and MOs.1 to 7 were identified from the side of prosecution, to prove its case. 5. On closure of prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** the incriminating circumstances brought on record, but no defence evidence was adduced. 6. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court found both the accused guilty under Sections 55(a) and 55(b) of the Abkari Act, and each of them were convicted and sentenced to undergo simple imprisonment for a period of five years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of six months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the accused persons preferred Crl. Appeal No.108 of 2005. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which the 2[nd] accused has preferred this revision. It is reported that the 1[st] accused is no more. 8. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** imposed on the revision petitioner by the courts below. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out some material defects, which, according to him, are sufficient to vitiate the trial. Moreover, the prosecution failed to prove any connection, whatsoever, for the revision petitioner with the contraband or the articles seized from the shed of the 1[st] accused-Lakshmikutty. 11. The first ground taken up by the learned counsel for the revision petitioner is that, the seizure mahazar does not bear specimen impression of the seal, which is sufficient to cast serious doubts regarding the genuineness and identity of the sample, which reached the chemical examiner’s lab for examination. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. If the specimen impression of the seal in the seizure mahazar is ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** the very same seal affixed in the sample bottle, it will guarantee that the sample sent to the lab was the sample drawn from the contraband seized from the possession of the accused, at the scene of occurrence itself. In the absence of specimen seal in the seizure mahazar, the prosecution cannot succeed in establishing the link evidence starting from the seizure of the sample, till it reaches the hands of the analyst. [See **Moothedath Sivadasan v. State of Kerala** (2021 KHC 3232), **Bhaskaran v. State of Kerala** (2020 KHC 5296), **Rajamma v. state of Kerala** (2014 (1) KLT 506) and **Balachandran v. State of Kerala** (2020 (4) KLT 137)]. 12. The prosecution failed to produce the forwarding note before court. When sample is drawn from the contraband seized, and it is produced before the court, the forwarding note also will be produced along with, and it shall contain the specimen impression of the seal, for comparison by the examiner to certify that the seal on the sample bottle tallied with the specimen impression of the seal, in the ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** forwarding note in order to ascertain tamper proof despatch of the sample to the lab. In the absence of forwarding note, we cannot give credence to the statement in the chemical analysis report that, the seal on the packets found tallied with the sample seal provided. 13. In **Bhaskaran v. State of Kerala** [2020 KHC 5296] cited supra, this Court clarified the importance of the specimen impression of the seal in the forwarding note as well as in the seizure mahazar, and it was also observed that, the detecting officer, who had drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Here, the forwarding note as such was not produced before court and so, the question of specimen impression of the seal is out of place. 14. The sample was seen forwarded to the chemical examiner’s lab on 14.10.1997. Ext.P6, chemical analysis report shows that, the sample reached the lab only on 22.10.1997 with a delay of 8 days. The excise guard, who took the sample to the chemical examiner’s lab was not ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** examined to explain the delay of 8 days in reaching the sample before the lab, after it was being forwarded from court. So also prosecution failed to prove tamper proof despatch of the sample, till it was anlaysed by the chemical examiner. 15. In **Krishnadas v. State of Kerala** [2019 KHC 191] this Court had occasion to consider the impact of delay in reaching the sample before the laboratory and it was held that when there is no explanation for the delay caused, it is a suspicious circumstances, and the benefit of that suspicion must go to the accused. 16. In Ext.P3 seizure mahazar, it is stated that, PW1 and excise party got information that the 1[st] accusedLakshmikutty was brewing illicit liquor at her house and on that information, they proceeded to that house. On reaching there, they found the revision petitioner burning fire in a shed attached to her house and brewing of illicit arrack was going on. PWs.3 and 4, the independent witnesses, though admitted their presence at the house of 1[st] accused- ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [37 x 9] intentionally omitted <==** Lakshmikutty along with excise party, they denied to have witnessed seizure of arrack or the utensils from that house. PW3 would say that, the revision petitioner-Raju was inside the house and not in the shed. PW4 did not say anything about the presence of the revision petitioner either in the shed or in the house of the 1[st] accused. Mere presence of the revision petitioner in the house of the 1[st] accused, is not a ground to find that he was consciously involved in brewing arrack along with the 1[st] accused-Lakshmikutty. The 1[st] accused was found guilty and convicted under Section 55(a) and 55(b) of the Abkari Act by the courts below, and now she is no more. 17. Learned counsel for the revision petitioner is relying on the decision **Suresh v. State of Kerala** [2020 (4) KLT 384] to say that, in order to prove possession, dominion or control over the property is necessary. 18. Paragraph 13 of **Suresh’s** case cited supra [2020 (4) KLT 384] reads thus; “ 13. "Possession" is not defined in the Abkari Act. It is well settled by precedents that to constitute ``` CRL.REV.PET NO. 2693 OF 2009 ``` ``` ..10.. ``` possession, the prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. In this case, the Excise Officials found that the accused was lifting a can from a pond, which is situated in the property of PW3. Except for the act of lifting the can from the pond, no other overtact is alleged against the accused in this case. The prosecution has not even a case that the accused was perplexed when he saw the Excise Officials. So the evidence available in this case is that the accused was lifting a can from a pond which belongs to a third party. Admittedly, PW3 is the owner of the pond from where this can was taken by the accused. Simply because there is evidence to show that the accused was found lifting the can from a pond belong to PW3 it will not prove "possession". Touching or lifting a contraband article from an open pond by an accused without any other overtacts will not amount to possession.To prove possession, dominion or control over the property is necessary. Hence it cannot be concluded that the accused was in possession of the contraband articles. Admittedly, the pond is situated in an open property. If a can is seen in a pond, a person may even take out the same because of curiosity. He may be a thief or an ordinary person trying to take out a strange article seen in a pond. In this case, the admitted case of the prosecution is that the accused lifted the can from the pond. I don't think that the same amounts to either physical/actual possession or even constructive possession of illicit liquor. ” ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [44 x 9] intentionally omitted <==** 19. Even the prosecution has no case that the revision petitioner herein was brewing liquor in the shed owned by the 1[st] accused-Lakshmikutty. The prosecution also has no case that the utensils used for brewing arrack belonged to the revision petitioner. They have also no case that the revision petitioner was found in possession of any illicit arrack or wash. So, his mere presence in the house of the 1[st] accused was not sufficient to find him guilty under Section 55(a) or 55(b) of the Abkari Act. The absence of specimen impression of the seal in the seizure mahazar, absence of forwarding note, delay in reaching the sample before the laboratory etc. etc. are the circumstances casting serious doubt regarding the veracity of the prosecution case, and the benefit of that suspicion must go to the revision petitioner. 20. The conviction and sentence of the revision petitioner under Sections 55(a) and 55(b) of the Abkari Act by the courts below, without noticing these material defects are liable to be interfered with. In the result, the revision petition is allowed. The ``` CRL.REV.PET NO. 2693 OF 2009 ``` **==> picture [44 x 9] intentionally omitted <==** revision petitioner is found not guilty of the offences alleged under Sections 55(a) and 55(b) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. **Sd/-** **SOPHY THOMAS JUDGE** LU