Revathy Karthik v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 287/2011 OF DISTRICT COURT & SESSIONS COURT, THODUPUZHA ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 471/2008 OF ASSISTANT SESSIONS ``` ``` COURT COURT, THODUPUZHA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` REVATHY KARTHIK ``` ``` S/O. RAMAKRISHNAN, SOTHUPARA TOP DIVISION, GUNDUMALA ESTATE, KDH VILLAGE. ``` ``` BY ADV SRI.SUMAN CHAKRAVARTHY ``` ## **`RESPONDENT/RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITH GEORGE-SR.P.P. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 2 ``` ## **O R D E R** This revision petition is at the instance of the accused in S.C. No.471 of 2008 on the file of Assistant Sessions Judge, Thodupuzha, assailing the judgment in Crl.Appeal No.287 of 2011 on the file of Sessions Judge, Thodupuzha, which upheld his conviction and sentence under Sections 8 (1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 07.11.2007 at about 5.30 p.m., the revision petitioner was found in possession of two litres of arrack in a plastic bottle, at the road in front of Southupara Government High School. 3. PW2-Excise Inspector and party detected the offence. The accused was arrested and the contraband was seized. After completing all legal formalities like sampling, labeling etc the revision petitioner was produced before court along with the records and the article seized. PW2Excise Inspector investigated the case and laid charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 3 ``` 4. On appearance of the revision petitioner on summons, charge was framed under Section 8 (1) and (2) of the Abkari read over and explained to which he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs.1 and 2, marked Exts.P1 to P8 and identified Mos.1 and 2 to prove its case. 5. On closure of the prosecution evidence, he was questioned under Section 313 of Cr.P.C. and he denied all the incriminating circumstances brought on record. No defence evidence was adduced. 6. On analyzing the facts and evidence, and also on hearing the rival contentions from either side, the trial court found the revision petitioner/accused guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1 lakh, and in default to undergo simple imprisonment for a further period of three months. 7. Aggrieved by the conviction and sentence, the ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 4 ``` revision petitioner preferred Crl. Appeal No.287 of 2011. The appellate court, on reappraisal of the facts and evidence, dismissed the appeal upholding the conviction and sentence imposed by the trial court. Hence this revision. 8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments rendered by the courts below. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. The prosecution relies upon the sole testimony of PW2, as PW1-the independent witness turned hostile to the prosecution. PW2 is the detecting officer as well as the Investigating Officer. From the moment of detection till the filing of final report, no other officer was seen involved. The learned Counsel for the revision petitioner would say that, since the detecting officer himself investigated the case, he was very much interested in its outcome, and so much so great prejudice has been caused to him. So his ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 5 ``` main allegation is that, the investigation was not proper, as it was biased. According to him, there was some political rivalry between AITUC and CITU, and he who belongs to AITUC was falsely implicated due to political vengeance. 11. It is true that, except the sole testimony of PW2, there is no other witnesses to support the prosecution case. PW2 detected the offence at 5.30 p.m., on 07.11.2007 and he prepared Ext.P1 seizure mahazar. Though the impression of specimen seal is seen in the mahazar, it is not legible. In the covering letter of the forwarding note, the sample seal provided bears, letters, FCMD. But, in Ext.P6 forwarding note, the sample seal affixed is not similar to the sample seal in the covering letter. So a genuine doubt arises as to which was the sample seal affixed on the sample bottle forwarded to the chemical examiner’s lab. Moreover, in Ext.P6 forwarding note, the name of the Excise Guard through whom the sample was sent to the chemical examiner’s lab is kept vacant. The thondy clerk of the court or the Excise Guard ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 6 ``` concerned, were not examined to explain that lacuna. But, in the covering letter dated 14.11.2007, it is mentioned that, the sealed packet was sent to the chemical examiner’s lab through Sri. K.C. Eldho, attached to Devikulam Excise Range. But he was not examined. 12. As already stated, the sample seal in the seizure mahazar, is not legible and no one can verify that seal with the sample seal provided in the forwarding note, or in the covering letter. When specimen impression of the seal is affixed in the mahazar, it is for the purpose of cross checking, as to the genuineness of the sample, taken at the scene of occurrence, and to ensure that, the sample bottle affixed with the very same seal reaches the court as well as chemical examiner’s lab. Since the sample seal seen in the seizure mahazar is not at all legible and comparable with the seal provided in the forwarding note, it is as good as not affixing any seal in the scene mahazar. 13. In **Moothedath Sivadasan v. State of Kerala** (2021 (1) KLT 744), this Court held that, when the ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 7 ``` specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult to hold that, the sample which reached the chemical examiner’s lab was the sample taken from the contraband allegedly seized from the possession of the accused. 14. Paragraph 12 of the decision **Moothedath Sivadasan** (2021 (1) KLT 744) reads thus; “ 12. No specimen impression of seal is seen affixed on Ext P1 seizure mahazar prepared by PW4. Further specimen impression of sample seal was not produced as an Exhibit in this case. Under the circumstances, 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. It appears from Ext P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml of clear and colourless liquid alleged to be spirit involved in Crime No 146/2000 of Iritty Police Station were received by the chemical examiner for chemical analysis. It is further stated in Ext P8 that the seals on the bottles were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. There is nothing on record to indicate that the sample seal was affixed in Ext P1 seizure mahazar. Thus, there is absolutely no evidence to establish that the prosecution has proved the sample seal or specimen ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 8 ``` impression of the seal alleged to have been affixed on the sample by PW4. In Rajamma v. State of Kerala (2014 (1) KLT 506] this Court held that in the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the accused.” 15. In **Sasidharan v. State of Kerala** (2007 (1) KLT 720), this Court held that the prosecution has a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, reached the hands of the chemical examiner, in a foolproof condition. 16. As we have seen, the specimen seal seen in the forwarding note is different from the sample seal in the covering letter dated 14.11.2007. Which was the seal affixed on the sample sent to the chemical examiner’s lab is not clear. So, though in the chemical report, the analyst has stated that the sample on the bottle was intact and found tallied with the sample seal provided, so long as, there is no clarity as to which was the sample seal affixed on the sample bottle, no sanctity could attached to that ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 9 ``` statement. 17. In **Prakasan v. State of Kerala** ( 2016 (1) KLT SN 89), this court held that, the seizure effected alone was not sufficient to convict the accused for the offence alleged. It must be further proved that the articles seized had reached the court in tamper proof condition and the chemical analysis report related to the sample, said to have been taken from the contraband article alleged to have been seized from the possession of the accused. 18. The prosecution is bound to establish the link evidence that the sample seized from the revision petitioner at the time of detection, was the sample which reached the chemical examiner’s lab for analysis. 19. For the reasons stated above, we have to conclude that, the prosecution could not prove its case beyond reasonable doubt, and hence, the revision petitioner is liable to be acquitted of the offence alleged against him. Hence the conviction and sentence of the revision petitioner under Sections 8(1) and 8(2) of the ``` CRL.REV.PET NO. 1582 OF 2012 ``` ``` 10 ``` Abkari Act are hereby set aside. 20. In the result, the revision petitioner is found not guilty of the offences under Sections 8(1) and 8(2) of the Abkari Act, and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith. The Revision Petition stands allowed accordingly. **Sd/-** **SOPHY THOMAS JUDGE** LU