Shaji s/o Mathew v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** **Crl.Rev.Pet.No.2102 OF 2013** **AGAINST THE JUDGMENT IN SC 656/2008 OF THE ASSISTANT SESSIONS JUDGE, ALAPPUZHA WHICH WAS CONFIRMED IN CRIMINAL APPEAL 493/11 BY THE COURT OF ADDITIONAL SESSIONS JUDGE, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SHAJI S/O.MATHEW,IRUPATHIL VEEDU, VELIYANADU MURI, VELIYANAD VILLGE, ALAPPUZHA DIST** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.06.2020, THE COURT ON 18.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.2102/2013 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.2102 of 2013 ------------------------------------------Dated this the 18[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.656/2008 on the file of the Court of the Assistant Sessions Judge, Alappuzha. 2. The prosecution case is that, on 13.11.2004, at about 18:00 hours, at the road in front of the house of one Chandran in Veliyanad Village, PW1 Preventive Officer found the petitioner having in his possession a can containing ten litres of arrack. 3. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. Crl.R.P.No.2102/2013 3 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P8 documents and MO1 material object. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of five months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. 6. The petitioner filed Crl.A.No.493/2011 before the Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the accused in this revision petition. 8. Heard learned counsel for the petitioner and the learned Crl.R.P.No.2102/2013 4 ## Public Prosecutor. Perused the records. 9. PW1 is the Preventive Officer who detected the offence. PW2 is another Preventive Officer who was in the excise party led by PW1. They have given evidence regarding the occurrence in detail. 10. PW3 and PW4 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P8 is the chemical examination report in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 55.43% by volume of ethyl alcohol. 12. Learned counsel for the petitioner has raised several contentions to challenge the conviction against the petitioner. But, in order to dispose of the revision petition, it is sufficient to consider his contention that, the evidence adduced by the prosecution is not sufficient to find that the very same sample Crl.R.P.No.2102/2013 5 allegedly drawn at the spot of the occurrence from the liquid allegedly seized from the possession of the accused was sent for analysis and tested in the laboratory. 13. There is merit in the aforesaid contention. None of the excise officers examined by the prosecution has given evidence that forwarding note for sending the sample for chemical analysis was prepared and submitted. The copy of the forwarding note, which should have been prepared by the investigating officer, for sending the sample for chemical examination was not tendered and marked in evidence in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh** Crl.R.P.No.2102/2013 6 ## **@Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 14. PW1 has stated on cross examination that it was his personal seal which was used for sealing the sample bottle. However, it is not stated in Ext. P1 seizure mahazar that the personal seal of PW1 was used for sealing the sample bottle. The specimen of the seal used is not seen affixed also on Ext.P1 mahazar. In such circumstances, tendering in evidence the copy of the forwarding note would have been necessary to enable the court to ascertain whether the sample seal provided in it was the personal seal of the detecting officer. Absence of the copy of the forwarding note in evidence, therefore, assumes significance. 15. In **Vijay Pandey v. State of Uttar Pradesh: AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot_ Crl.R.P.No.2102/2013 7 _be conclusive proof by itself. The sample seized and that tested have to be co-related"._ 16. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 17. The above mentioned vital aspects have not been considered by the courts below while appreciating the Crl.R.P.No.2102/2013 8 prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the courts below cannot be sustained. The petitioner/accused is entitled to be acquitted. 18. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act, which has been affirmed by the appellate court, is set aside. The petitioner is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge