Satheesan 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. 2868 OF 2004 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 334/2001 OF SESSIONS COURT, ``` ## **`KOZHIKODE`** ``` AGAINST THE ORDER/JUDGMENT IN CC 717/1998 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS -I,THAMARASSERY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SATHEESAN ``` ``` THEVARVATTOTH,POOLAKODE AMSOM, EARIMALA DESOM. ``` ``` BY ADVS. P.S.SREEDHARAN PILLAI P.GOPINATH (SR.) K.B.SAJEESH C.S.SUNIL SRI.P.R.SREEJITH ARJUN SREEDHAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ## **`SHRI 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. 2868 OF 2004 ``` ``` 2 ``` ## **O R D E R** This revision petition is at the instance of the accused in C.C. No.717 of 1998 on the file of Judicial First Class Magistrate Court-I, Thamarassery, assailing the judgment in Crl.Appeal No.334 of 2001 on the file of Sessions Judge, Kozhikode, which upheld his conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that, on 06.03.1997, PW1 and excise party, while on patrol duty found the revision petitioner carrying a black can containing 4 litres of arrack. He was arrested and the contraband was seized. After completing all legal formalities like sampling, labeling etc. the revision petitioner was produced before the Excise control room along with records and seized articles. 3. PW3-Excise Inspector investigated the case and laid charge sheet against the revision petitioner under Section 55(a) of the Abkari Act. On appearance of the revision petitioner before the trial court, particulars of offence was read over and explained to which he pleaded ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 3 ``` not guilty and claimed to be tried. Thereupon, prosecution examined PWs.1 to 5, marked Exts.P1 to P5 and identified M.O.1 to prove its case. 4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. and he denied all the incriminating circumstances brought on record. DW1 was examined from the side of the revision petitioner. 5. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 55(a) of the Abkari Act, and he was sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.25,000/-, and in default to undergo simple imprisonment for two months. 6. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.334 of 2001. The appellate court, on re-appraisal of the facts and evidence, dismissed the appeal, upholding the conviction and sentence imposed by the trial court. So he has ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 4 ``` preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the judgments rendered by the courts below. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. The revision petition is assailing his conviction and sentence mainly on technical laches from the part of the prosecution, which according to him are sufficient to prove that the prosecution case is not geninue. 10. PW1-the detecting officer deposed that he arrested the revision petitioner and seized the contraband on 06.03.1997 at 6.00 p.m. PW3-the Investigating Officer deposed that the revision petitioner along with the records and articles seized were produced before the Excise Range office, Kunnamangalam on 07.03.1997 at 7.00 p.m. But he would say that since 07.03.1997 to 09.03.1997 were holidays, he produced the records and seized articles before the Magistrate court only on 10.03.1997. No explanation is seen offered by PW1 as to why there ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 5 ``` occurred one days delay in producing the revision petitioner and the records along with the contraband before Excise Office. If the seized articles and records were produced before him only on 07.03.1997, there is an unexplained delay of one day. Moreover, for the delay in producing the records and seized articles before court the explanation given by PW3 that due to holidays he could produce it before the Judicial First Class Magistrate Court only on 10.03.1997 also is not a proper explanation, as Magistrates will be available in station, even on holidays, to attend emergent official duties like remand, bail, receipt of records, property etc. etc. So, the delay in producing the records and seized articles before the Excise Range office as well as before the court, is not properly explained by the prosecution. The unexplained delay aforementioned is fatal to the prosecution case. 11. In Ext.P1 seizure mahazhar, there was no impression of specimen seal. The impression of sample seal affixed in the seizure mahazar is a guarantee to ensure that the sample seal affixed in the sample bottle ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 6 ``` produced before the court was affixed at the scene of occurrence itself. Prosecution is duty bound to prove tamper-proof despatch of the sample from the place of seizure till it reached the chemical examiner’s lab. When there is no specimen seal in the scene mahazar, the seal in the forwarding note, as well as in the sample bottle received before the chemical examiner’s lab, become doubtful. 12. In **Moothedath Sivadasan and Another v. State of Kerala (2021 (1) KLT 744)** this Court held that, when the 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. ## 13. Paragraph 12 of the decision **Moothedath Sivadasan and Another** (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 ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 7 ``` 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.” 14. In the forwarding note, which was marked as Ext.P4, the space for writing the name of the Excise Guard, who took the sample to the chemical examiner’s lab for ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 8 ``` the analysis is kept vacant. Though forwarding note is countersigned by the Judicial First Class Magistrate, no date is mentioned there. Copy of the covering letter also is not found along with Ext.P4 forwarding note. So, even though the forwarding note was signed by the Excise Inspector on 10.03.1997, it is not clear when it was forwarded to the chemical examiner’s lab. 15. In **Kumaran P v. State of Kerala, (2016 (5) KHC 632 : 2016 (4) KLT 718),** this Court held that, when the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, is remaining vacant in the forwarding note, the prosecution has to examine the Thondy Clerk of the Court or Excise Guard concerned, to prove tamper proof despatch of the sample to the laboratory. Absence of such examination, enures to the benefit of the accused. 16. Paragraph 7 of the decision **Kumaran P (2016** ## **(5) KHC 632 : 2016 (4) KLT 718)** reads thus; “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 9 ``` 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 02/08/2007. 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 ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 10 ``` thondy clerk nor the Excise Guard through whom the sample was sent to the 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…”. 17. Though in Ext.P5 chemical analysis report, the anaylist has reported that the seal on the bottle was intact and found tallied with the sample seal provided, since no sample seal is affixed in the seizure mahazar, we could not say that the sample which was taken from the scene of occurrence was sealed with the very same sample seal provided in the seizure mahazar, and that sample reached the chemical examiner’s lab. So, the prosecution failed to establish the link evidence to prove that the sample which was recovered at the scene of occurrence from the possession of the revision petitioner was the sample analyzed by the chemical examiner as per Ext.P5 chemical analysis report. 18. No property list was seen produced by PW3 ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 11 ``` along with the contraband, before the Magistrate court. According to PW3, he produced the records and articles seized before the Magistrate on 10.03.1997. In the absence of property list, the date and time of production of the seized articles before the Magistrate court could not be verified. Moreover, in the seizure mahazar, though it is stated that, the revision petitioner was arrested, no arrest memo and arrest intimation were seen prepared or produced before court. In the seizure mahazar also, there is no mention about the preparation of arrest memo or arrest intimation at the scene of occurrence. So, the arrest of the revision petitioner at the scene of occurrence also is not supported by documents. 19. Learned counsel for the revision petitioner relied on the decision **Baburaj v. State of Kerala (2021 (6) KHC 92)** wherein this Court held that, in the absence of evidence regarding the preparation of arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 20. Paragraphs 39 and 40 of the decision **Baburaj** ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 12 ``` ## (2021 (6) KHC 92) reads thus; “ 39. It is relevant to note that, in the instant case, the 'arrest memo’ and the 'arrest intimation' have not been placed before the Court. The prosecution has no case that the 'arrest memo' and 'arrest intimation’ were prepared, but they could not be produced before the Court. The necessary inference is that the 'arrest memo' and 'arrest intimation’ were not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance. The non-compliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. Where the prosecution has failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to the ground. 40. This Court in Ramankutty v. Excise Inspector, Chelannur Range (2013 (3) KHC 308 : 2013 (3) KLJ 434 : ILR 2013 (3) Ker. 535: 2013 (3) KLT SN 83) had considered a similar fact situation. This Court held that non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful.” 21. The material irregularities and technical laches ``` CRL.REV.PET NO. 2868 OF 2004 ``` ``` 13 ``` discussed above will speak against the genuineness of the prosecution case. The absence of specimen impression of the seal in the seizure mahazar, the absence of name of the Excise Guard, in the forwarding note, absence of property list, arrest memo, arrest intimation, delay in producing the records and seized articles before the Magistrate etc.. etc.. are fatal to the prosecution case. So the impugned judgments of conviction and sentence are hereby set aside. 22. In the result, the revision petitioner is found not guilty of the offence under Section 55(a) 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. The Revision Petition stands allowed accordingly. Sd/- **SOPHY THOMAS JUDGE** LU