SHAFEEK v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 223/2002 OF I ADDITIONAL ``` ``` SESSIONS COURT, KOLLAM ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 1133/1997 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS-III, PUNALUR ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SHAFEEK VARIKOLIL VEEDU, VALAKODE WARD, PUNALUR MUNICIPALITY, PATHANAPURAM TALUK. BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA EXCISE INSPECTOR, PATHANAPURAM RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI. RENJITH GEORGE – SR. PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 2 ``` ## **O R D E R** This revision petition is at the instance of the accused in C.C. No.1133 of 1997 on the file of Judicial First Class Magistrate Court-III, Punalur, assailing the judgment in Crl.Appeal No.223 of 2002 on the file of 1[st] Additional Sessions Judge, Kollam, which upheld his conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that, on 29.08.1995 at about 9.00 p.m., the revision petitioner was found in possession of a black jerry can containing 2 liters of illicit arrack, near railway over bridge at Valacodu. 3. PW1-Preventive Officer and excise party detected the offence. The accused was arrested and the contraband was seized. After completing the legal formalities like sampling, labeling etc., the revision petitioner was produced before the Excise office along with records and seized articles. 4. On appearance of the revision petitioner before the trial court, particulars of offence was read over, to which he ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 3 ``` pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P4 and identified M.O.1 to prove its case. 5. After closing prosecution evidence, he 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. 6. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner/accused guilty under Section 55(a) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.25,000/-, and in default to undergo simple imprisonment for three months. 7. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.223 of 2002. The appellate court, on re-appraisal of the facts and evidence, dismissed the appeal, upholding the conviction and sentence, against which he has preferred this revision petition. ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 4 ``` 8. Now this Court is called upon to verify the legality, propriety and correctness of the decision taken by the appellate court, by which the conviction and sentence imposed by the trial court was confirmed. 9. Heard learned Counsel for the revision petitioner and learned Public Prosecutor. 10. The main grounds taken up by the revision petitioner is with respect to the technical defects in seizure, arrest etc. 11. The 1[st] ground is that, in Ext.P1 seziure mahazar, no specimen seal is impressed, and moreover, in the mahazar it is not mentioned that, sample was taken from the can allegedly seized from the possession of the revision petitioner. Learned Counsel for the revision petitioner relied on the decision **Moothedath Sivadasan and Another v. State of Kerala** **(2021 KHC 3845)** to say that, when there is nothing on record to indicate that the sample seal was affixed in Ext.P1 seizure mahazar, there is absolutely no evidence to establish that the sample, which was seized from the scene of occurrence, reached the court and later, reached the chemical ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 5 ``` examiners laboratory, so it is unsafe to convict the accused. ## 12. Paragraph 12 of the decision **Moothedath Sivadasan** (2021 KHC 3845) 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 impression of the seal alleged to have been affixed on the ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 6 ``` 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.” 13. Here in the case on hand, no sample seal was provided in the seizure mahazar, and moreover it was not mentioned in the mahazar that sample was taken from the contraband seized from the revision petitioner. So there is no link evidence to connect the contraband with the sample which reached the lab for analysis. 14. Another ground is that, no forwarding note was prepared by PW1, while sending the sample to the court and it will be fatal to the prosecution case. To canvass that point, she relied on the decision **Suresh v. State of Kerala (2021 KHC 5689)** which says that, if the forwarding note has not been proved, there is no evidence regarding, when exactly the request for forwarding the sample to chemical analysis was made by the prosecution, and when exactly it was actually ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 7 ``` sent. Moreover, there occurred delay in sending the sample to the chemical examiners laboratory. The learned Counsel for the revision petitioner pointed out that, the date of occurrence was on 29.08.1995, but it reached the court only on 10.01.1996 with a delay of 134 days. No explanation was offered by the prosecution, for that much of delay. The sample was seen sent to the chemical examiners laboratory on 29.07.1997 that is after 1[1] /2 years of its production before the court. For that also, no satisfactory explanation is forthcoming. The delay in producing the sample before the court after seizure, and the delay in sending the sample to the chemical examiners laboratory are casting serious doubts regarding the alleged seizure of the contraband, from the possession of the revision petitioner on 29.08.1995. 15. No arrest memo and arrest intimation are seen produced in this case. So, no cogent evidence is forthcoming to prove the arrest of the revision petitioner, at the scene of occurrence. That also will substantiate the case of the revision petitioner that he was never arrested as alleged by PW1 on ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 8 ``` ## 29.08.1995, and nothing was seized from his possession. 16. Learned Counsel for the revision petitioner relied on the decision **Baburaj v. State of Kerala (2021 (6) KHC 92)** to say that non-production of the arrest memo and arrest intimation, makes the arrest doubtful. 17. Paragraphs 39 and 40 of the decision **Baburaj** (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. ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 9 ``` 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.” 18. No property list also was seen produced before court along with the contraband. The occurrence report prepared on 29.08.1995, reached the court only on 02.09.1995 with a delay of 4 days, for which also no proper explanation is coming up from the prosecution. 19. The defects noted above, are material defects which are fatal to the prosecution case. So the conviction and sentence imposed by the trial court as well as the appellate court are liable to be set aside. ``` CRL.REV.PET NO. 3100 OF 2006 ``` ``` 10 ``` In the result, this Criminal revision petition is allowed. The revision petitioner is found not guilty of the offence punishable 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. **Sd/-** **SOPHY THOMAS JUDGE** LU