Sasi O.T. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945** ## **CRL.REV.PET NO. 342 OF 2006** **AGAINST THE JUDGMENT CRA NO.662/2003 DATED 19.11.2005 PASSED BY THE COURT OF THE II ADDL. SESSIONS JUDGE, KOZHIKODE AND IN S.C NO.525/2001 DATED 10.11.2003 PASSED BY THE COURT OF THE I ADDITIONAL ASSISTANT SESSIONS JUDGE, KOZHIKODE** ## **REVISION PETITIONER:** SASI O.T., S/O.CHOYI, PUTHIYOTTIL VEEDU, POOLAKKODE AMSOM, DESOM, KKOZHIKODE TALUK. BY ADV SRI.SUNNY MATHEW ## **RESPONDENT:** STATE OF KERALA THROUGH THE EXCISE RANGE INSPECTOR, KUNNAMANGALAM RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Crl.R.P.No.342 of 2006 2** ## **VIJU ABRAHAM,J** ## **----------------------Crl.R.P.No.342 of 2006 ------------------------------------Dated this the 18[th] day of September, 2023** ## **ORDER** The revision petitioner is the accused in SC No.525 of 2001 on the file of the 1[st] Addl. Asst. Sessions Judge, Kozhikode alleging commission of offence punishable under Section 55(g) of the Abkari Act. 2. The prosecution case is that on 05.11.1999 at about 1 p.m., the accused was found in possession of 80 litres of wash in a container having a capacity of 100 litres on the pathway near the property of one Gopalan in Poolakkod Amsom. 3. To prove the case of the prosecution, PWs.1 to 5 were examined and proved Exts.P1 to P6 and MO1. 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and convicted and sentenced him to undergo simple imprisonment for 4 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one year. The set-off for the remand period was also granted. ## **Crl.R.P.No.342 of 2006 3** 5. Aggrieved by the said conviction and sentence, the Revision Petitioner filed an appeal as Crl.Appeal No.662 of 2003 before the IInd Additional Sessions Judge, Kozhikode. However, as per the judgment dated 19.11.2005, the conviction was confirmed but the sentence was modified to two years maintaining the fine and default clause imposed by the trial court. 6. The learned counsel appearing for the petitioner would contend that the conviction and sentence passed by both the courts are illegal, improper and irregular and that the prosecution was not successful in proving the case against the petitioner/accused beyond reasonable doubt. On the contrary, learned Public Prosecutor would submit that prosecution was able to prove the guilt of the accused by adducing sufficient and cogent evidence and therefore prayed to maintain the conviction and sentence imposed by the courts below. 7. The learned counsel for the Revision Petitioner mainly raised the following two contentions. In Ext P1 scene mahazar, no specimen seal is seen affixed. It is further contended that there is an inordinate delay in completing the investigation. Learned counsel appearing for the revision petitioner submits that the ## **Crl.R.P.No.342 of 2006 4** occurrence was on 5.11.1999 and the chemical analysis report was received on 22.4.2000, the final report was filed only on 22.6.2021, i.e., almost more than one year from the date of receipt of the chemical analysis report. Learned counsel for the revision petitioner submits that no sufficient explanation has been offered for the delay occurred and therefore, the same is fatal to the case of the prosecution. 8. A perusal of Ext.P1 would show that there is no specimen seal affixed on the mahazar. 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. In **Natarajan 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, 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 ## **Crl.R.P.No.342 of 2006 5** 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 **Moothedath Sivadasan** **v. State of Kerala, 2021 (1) KLT 744.** Paragraph 12 of the said judgment reads as follows: _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 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._ ## **Crl.R.P.No.342 of 2006 6** 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. 9. The next contention raised by the revision petitioner is regarding the delay in filing the final report. It is submitted that occurrence was on 5.11.1999 and the chemical analysis report was received on 22.4.2000, the final report was filed only on 22.6.2021, i.e., almost more than one year from the date of receipt of the chemical analysis report. Learned counsel for the revision petitioner further submits that no sufficient explanation has been offered for the delay occurred and therefore, the same is fatal to the case of the prosecution. The learned counsel for the revision petitioner relies on the ## **Crl.R.P.No.342 of 2006 7** judgment in _**Chandran @ Chandrashekaharan v. State**_ _**(2016 (5) KHC 650)**_ of this Court, paragraph 12 of which reads as follows: _“There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ Admittedly, there is a long unexplained delay in filing the final report which is fatal to the prosecution case. 10. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner. Therefore, the conviction and ## **Crl.R.P.No.342 of 2006 8** sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below under Section 55(g) of the Abkari Act 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. sd/- **VIJU ABRAHAM, JUDGE** pm