Santosh, S/o Sadanandan and Yasodharan, S/o Sreedharan v. State Represented by Public Prosecutor, High Court of Kerala (CRL.R.P No.2842 of 2009)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 8 [ TH ] DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 2842 OF 2009 ``` ``` AGAINST THE JUDGMENT DATED 02.06.2009 IN CRL.APPEAL NO.719/2007 OF ADDITIONAL SESSIONS JUDGE FAST TRACK COURT NO.II (ADHOC), THRISSUR SC 547/2005 OF ADDITIONAL ASSISTANT SESSIONS COURT, IRINJALAKUDA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` 1 SANTHOSH,S/O.SADANANDAN, PADINJAREDATH HOUSE, KALOOR VADAKKUMURI VILLAGE, KADUKUTTY DESOM, THRISSUR. ``` ``` 2 YASODHARAN, S/O. SREEDHARAN, ``` ``` PUTHIYATTIL HOUSE, KALOOR VADAKKUMURI VILLAGE, KADUKUTTY DESOM, THRISSUR. ``` ``` BY ADV SMT.MANJUSHA K., AMICUS CURIAE ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`SHRI RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.2842 of 2009 2 ## **O R D E R** This revision is at the instance of the accused in S.C.No.547 of 2005 on the file of Additional Assistant Sessions Judge, Irinjalakuda, assailing the judgment in Crl.Appeal No.719 of 2007 on the file of Additional Sessions Judge Fast Track Court No.II (Adhoc), Thrissur, which upheld their conviction and sentence under Section 8(2) of the Abkari Act. 2. Prosecution case is that on 31.08.2003, at 03.30 a.m., the revision petitioners were found carrying ten litres of illicit arrack in a motorbike. PW4, the Excise Inspector and party, while on patrol duty, detected the offence. The revision petitioners were arrested and the contraband was seized. After completing the legal formalities, the revision petitioners along with the contraband were produced before the Excise Office and crime was registered against them under Section 8(1) and 8(2) of the Abkari Act. PW4 himself Crl.R.P No.2842 of 2009 3 conducted the investigation and laid charge against them. 3. On appearance of the revision petitioners before the trial court, charge was framed under Section 8(1) and 8(2) of the Abkari Act, to which they pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 4, marked Exts.P1 to P8 and identified MO1 to prove its case. On closure of the prosecution evidence, the revision petitioners were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought on record, and no defence evidence was adduced from their side. 4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioners guilty under Section 8( 2 ) of the Abkari Act, and they were convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/- by each, with a default sentence of rigorous imprisonment for six months. Crl.R.P No.2842 of 2009 4 5. Aggrieved by the conviction and sentence, the revision petitioners preferred Crl. Appeal No.719 of 2007. The appellate court dismissed the appeal upholding the conviction and sentence under Section 8(2) of the Abkari Act, against which, this revision is preferred by them. 6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence of the revision petitioners by the courts below, under Section 8(2) of the Abkari Act. 7. When the revision petition was taken up for consideration, there was no representation from their side, as it was submitted that the counsel appearing for them became a Presiding Officer. So notice was sent to the revision petitioners directly. But it was returned with the endorsement that both of them expired. So as per order dated 15.11.2023, Registry of this Court was directed to address the Excise Inspector, Mala Excise Range to collect the details of their legal representatives, if any, so as to Crl.R.P No.2842 of 2009 5 proceed with the case. As per report dated 22.11.2023, the Excise Inspector, Mala Excise Range, produced copy of Death Certificates of both the revision petitioners, and it was reported that the legal representatives of the deceased revision petitioners were not interested to proceed with this case. Since the sentence imposed includes fine amount of Rs.1,00,000/- to be paid by each of the revision petitioners, the matter had to be heard on merit. Since there was nobody to prosecute the matter, Adv. Smt.Manjusha K. was appointed as Amicus Curiae for the revision petitioners. 8. Heard learned Amicus Curiae as well as learned Public Prosecutor. 9. Learned Amicus Curiae pointed out some material defects in the prosecution case, which according to her, are sufficient to vitiate the trial. She drew the attention of this Court to the fact that, though Ext.P1 seizure mahazar contains specimen impression of the seal used for sealing the sample bottle, the nature of the seal used will not find a Crl.R.P No.2842 of 2009 6 place in the mahazar. The independent witnesses, PWs 2 and 3, turned hostile to the prosecution, and so except the interested testimony of the official witnesses, there is nothing to prove the prosecution case. Moreover, PW4-the detecting officer himself registered the crime and investigated the case, and that has caused great prejudice to the revision petitioners. Moreover, the forwarding note does not contain the specimen impression of the seal, or the name of the person with whom the sample bottle was forwarded to the Chemical Examiner’s Laboratory. The covering letter of the forwarding note also does not show the name of the Excise Guard with whom the sample was sent to the Chemical Examiner’s Laboratory. Though the seizure of the contraband was on 31.08.2003, Ext.P4 property list shows that, the sample bottle reached the court only on 02.09.2003 with a delay of two days and it is not explained by the prosecution. Moreover, there occurred delay of more than 1½ years in filing the final report and that delay also is Crl.R.P No.2842 of 2009 7 not explained by the prosecution. 10. On going through Ext.P4 property list, it could be seen that the contraband along with the sample bottle reached the jurisdictional Magistrate court only on 02.09.2003, though the seizure was on 31.08.2003. Prosecution was bound to explain that delay in order to prove that, there was tamper proof despatch of the sample to the court without any delay. In the forwarding note, the specimen impression of the seal is not seen affixed. The sample bottle will be forwarded to the Chemical Examiner’s Laboratory along with the forwarding note which contains the specimen impression of the seal, and at the Laboratory, the genuineness of the sample bottle will be verified comparing the seal on the bottle with the specimen impression of the seal in the forwarding note. As we know the seizure mahazar which contains the specimen impression of the seal will not be forwarded to the Chemical Examiner’s Laboratory. So before the Laboratory, the seal Crl.R.P No.2842 of 2009 8 for comparison will be the seal found in the forwarding note. When there is no such specimen impression of the seal, in the forwarding note, the report of the Chemical Examiner, that the seal on the bottle was intact and found tallied with the sample seal provided, is of no consequence. The prosecution was duty bound to prove that the sample which reached the Chemical Examiner’s Laboratory was the sample taken from the contraband allegedly seized from the possession of the accused. The specimen impression of the seal in the forwarding note also is an important factor to verify the genuineness of the sample seized at the place of occurrence. If the specimen seal is not affixed in the forwarding note, prosecution cannot succeed, because the link evidence starting from the seizure, till it reached the hands of the Analyst has to be proved. (See **Balachandran** **v. State of Kerala [2020 (4) KLT 137]** and **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** ). 11. The name of the Excise Guard with whom the Crl.R.P No.2842 of 2009 9 sample bottle was sent to the Chemical Examiner’s Laboratory does not find a place, in the forwarding note as well as in its covering letter. The Chemical Report shows that the sample bottle was forwarded from Judicial First Class Magistrate Court, Chalakudy on 20.09.2003 and it was produced before the Laboratory on the very same day, by the Excise Guard Sri.E.K.Sabu. But his name does not find a place either in the forwarding note or in the covering letter. 12. Ext.P8 Chemical Report was issued on 22.12.2003. But the final report was filed only on 12.04.2005, after a delay of about 16 months, and that delay also is not explained by the prosecution satisfactorily. Admittedly, PW4-the detecting officer himself registered the crime against the revision petitioners and he himself investigated the case. A fair investigation is the very foundation of fair trial. Learned Amicus Curiae submitted that since the detecting officer himself registered the case against the revision petitioners and he himself investigated the case and Crl.R.P No.2842 of 2009 10 laid charge against them, prejudice has been caused to them. According to her, it was a one man show conducted by the officer causing prejudice to the revision petitioners. In **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** , this Court held that when the detecting officer, who registered the case himself conducted the entire investigation and filed the final report, such _‘one man show’_ has definitely caused prejudice to the accused. 13. The conviction and sentence of the revision petitioners by the trial court as well as the appellate court without taking into account the material defects in the prosecution case, as pointed out above, are liable to be set aside. 14. In the result, the impugned judgments of conviction and sentence by the courts below are set aside. The revision petitioners are found not guilty of the offence punishable under Section 8(2) of the Abkari Act and they are acquitted under Section 235(1) of Cr.P.C. Their bail bonds are Crl.R.P No.2842 of 2009 11 cancelled and they are set at liberty forthwith. Accordingly, the revision petition stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-