Sathyan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 ``` ## **`CRL.REV.PET NO. 2736 OF 2006`** ``` AGAINST THE JUDGMENT IN CRA 629/2001 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE CC 301/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOYILANDY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SATHYAN, S/O.KELAN (LATE), CHERIYA PARAMBIL HOUSE, NADUVANNUR AMSOM, MANDANKAVU DESOM,KOYILANDY TALUK. ``` ``` BY ADV SRI.SUNNY MATHEW ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA THROUGH THE EXCISE INSPECTOR BALUSSERY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ## **`SR. PP SRI RENJITH GEORGE`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.RP No.2736 of 2006 2 ## **VIJU ABRAHAM,J** ## **.............................................. Crl.R.P.No.2736 of 2006 .............................................. Dated this the 25[th] day of September, 2023** ## **ORDER** Revision petitioner is the accused in C.C.No.301 of 1998 on the file of the Judicial First Class Magistrate Court, Koyilandy registered alleging commission of offences punishable under Section 55(a), (b) and (g) of the Kerala Abkari Act. 2. The prosecution case is that on 28.01.1997 at about 11.30 p.m., PW4 the Excise Inspector, Perambra detected illicit distillation of country arrack by the accused in his residential house bearing no.4/378 in Naduvannur Panchayat at Mandankavu in Naduvannur Village in Koyilandy Taluk and thereby the revision petitioner/accused has committed the alleged offences. 3. The prosecution in support of their case examined PW1 to PW4 and marked Exts.P1 to P7 and MO1 to MO8. 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 one year and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months. Though an appeal was preferred as Crl.Appeal No.629 of 2001 before the Additional District and Sessions Court, Fast Track (Adhoc-II), Crl.RP No.2736 of 2006 3 Kozhikode, the same was dismissed confirming the conviction and sentence imposed by the trial court. 5. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in _**Baburaj v. State of Kerala, 2021 (6) KLT 416**_ , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in _**Sathi v. State of Kerala, 2007 (1) KLT SN 57**_ **.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 6. The petitioner raised various contentions assailing the order of conviction and sentence imposed by the courts below. The first contention raised by the petitioner is that the arrest memo and arrest intimation have not been produced. The Apex Court in _**D.K.Basu v. State of West Bengal (1997) 1 SCC 416**_ , has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of Crl.RP No.2736 of 2006 4 arrest. This court in _**Baburaj**_ ’s case cited supra has held that the nonproduction of the arrest memo and arrest intimation will lead to an inference that the same was 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 and therefore the non-compliance of mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in _**Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KLT SN 83**_ which 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. This court in _**Rafeeque v. Sub Inspector of Police, 2020 (4) KLT 188**_ has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this court in _**Udayan v. State of Kerala, 2023 (1) KLT 371**_ . Therefore, the non-compliance of this mandatory requirement makes the prosecution case doubtful. 7. The second ground is regarding the delay in the production of the contraband before the court. Petitioner would further submit that no property list is produced and seen marked in this case. Petitioner submits that the occurrence was on 28.01.1997 and a perusal of Ext.P6 will reveal that the sample and property were Crl.RP No.2736 of 2006 5 forwarded to the court only on 19.06.1997 and therefore there is an unexplained delay of more than five months. Learned Public Prosecutor would submit that the delay has been explained by PW4. A perusal of the evidence of PW4 would reveal that the property was put in safe custody in the thondy room attached to the Balussery Excise Range Office and the Preventive Officer Sri.T.Balakrishnan was in custody of the same and further that it is only due to the workload in the office that the property could not be produced before the court within time. I am of the opinion that the said explanation is not a proper explanation for the delay in producing the document before the court. Though it is stated that one T.Balakrishnan was in custody of the contraband till it was produced before the court, the said officer is not seen examined to prove the same. This court in _**Ramachandran v. State of Kerala (2021 (1) KLT 793**_ has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. 8. The next contention raised by the petitioner is that no seal is seen affixed in the seizure mahazar. In this context, the evidence of PW4 is also to be considered. The evidence of PW4 is that he has affixed his personal seal (C.K.K.) in the sample taken from the alleged Crl.RP No.2736 of 2006 6 contraband seized. But he admitted that in the forwarding note his specimen seal is not seen affixed. Though it is admitted by PW4 that he has affixed the seal in the sample bottle, he has also admitted that he has not affixed the specimen seal in the forwarding note. This aspect is fatal to the prosecution case. 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 _**Nadarajan 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 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**_ . This court in _**Sasidharan v. State of Kerala, 2007 (1) KLT 720**_ has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamperproof condition. Relying on the judgment of the Apex Court in _**State of**_ Crl.RP No.2736 of 2006 7 _**Rajasthan v. Daulat Ram, AIR 1980 SC 1314**_ , this court in _**Sasidharn**_ ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. 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. The nonproduction of the property list in the trial also cast a doubt on the prosecution case regarding the alleged seizure of the contraband from the possession of the petitioner. 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 above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and 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 and the Crl.RP No.2736 of 2006 8 revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM** **JUDGE** cks