Sivan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 CRL.REV.PET NO. 982 OF 2012 CRA 6/2010 OF ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA SC 268/2007 OF ASSISTANT SESSIONS COURT, KATTAPPANA`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SIVAN AGED38YEARS S/O.OUTHA,KAITHAMATTATHILHOUSE, CHINNARKAVALA,ELAPPARAVILLAGE, PEERMADETALUK. ``` ``` BYADVSRI.NIREESHMATHEW ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT & STATE:`** ``` STATEOFKERALA REP.BYTHEPUBLICPROSECUTOR,HIGH COURTOFKERALA,ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITGEORGE,SR.PUBLIC PROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARDON 09.11.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.R.P No.982 of 2012 2 ## **O R D E R** This revision is at the instance of the accused in Sessions Case No.268 of 2007 on the file of Assistant Sessions Court, Kattappana, assailing the judgment in Crl.Appeal No.6 of 2010 on the file of 4[th] Additional Sessions Court (Adhoc-II), Thodupuzha, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 26.08.2006 at 4.45 p.m, while PW1, preventive officer attached to Excise Circle Office, Peermade and his party, were conducting abkari raid near Chinnar junction, they found the revision petitioner with a 10 litre can which contained 5.800 litres of illicit arrack. He was arrested then and there and the contraband was seized and sample was taken. After completing all the legal formalities, the revision petitioner along with the records and articles seized were produced before the Excise Range Office, Peermade and CR No.25 of 2006 was registered. PW6 investigated the case and laid charge sheet against the revision petitioner. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. Crl.R.P No.982 of 2012 3 Thereupon prosecution examined PWs 1 to 6, marked Exts.P1 to P8 and identified M.O.1. 4. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 Cr.P.C and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for 18 months and fine of Rs.1 lakh and in default to undergo simple imprisonment for a further period of two months. 6. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.6 of 2010, and the appellate court, on re-appreciating the facts and evidence, upheld the conviction and sentence and dismissed his appeal, against which he has preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed by the trial court as well as the appellate court. 8. Heard learned counsel for the petitioner and learned Crl.R.P No.982 of 2012 4 Public Prosecutor. 9. PW1, the detecting officer, and PW2, the Excise Officer who was accompanying PW1, gave testimony in tune with the prosecution case. PW6 is the investigating officer. 10. Learned counsel for the revision petitioner pointed out the material defects and procedural irregularities which, according to him, will vitiate the trial as well as the conviction and sentence imposed by the trial court as well as the appellate court. 11. The first point canvassed by the learned counsel for the petitioner is that, PW5, who registered the crime, was only a preventive officer and he was not competent to register the crime. Ext.P5, the crime and occurrence report prepared by PW5, shows that, he registered that crime on the basis of O.R No.12/06, which was registered at the office of Peermade Excise circle. PW5 registered Ext.P5 occurrence report and signed the same for and on behalf of the Excise Inspector. But, no documents were seen produced to show that, he was holding charge of Excise Inspector, Peermade Range on 26.08.2006. When he was examined before court as PW5, he had no case that, he was holding the charge of Excise Inspector on 26.08.2006, so as to register the crime. In the absence of any document to show that he was holding the charge Crl.R.P No.982 of 2012 5 of Excise Inspector, and in the absence of any oral testimony as to his capacity to register the crime, as the Excise Inspector in charge, the argument of the learned counsel for the revision petitioner assumes significance. It has to be held that the prosecution failed to prove the competence of PW5 to register the crime. 12. In Ext.P2 seizure mahazar, impression of the specimen seal is not seen affixed. Though in Ext.P2 it is stated that, the sample was drawn from the can in a 375ml bottle and it was sealed, there is no mention about the nature of the seal affixed in the sample bottle. The case records show that, the sample seal was separately provided before the jurisdictional Magistrate and it was seen produced before the court on 27.08.2006. PW1 has signed the additional sheets in which the sample seal was impressed, but it does not bear any date. Moreover, it was not seen marked by the prosecution to form it as part of evidence. So, we are not sure whether the sample seal produced before court on 27.08.2006 was the sample seal affixed in the sample bottle seized on 26.08.2006 at the place of occurrence. There was no reason for PW1 for not affixing the specimen impression of the seal in Ext.P2 mahazar itself. The prosecution is bound to establish the link Crl.R.P No.982 of 2012 6 evidence to prove the identity of the sample, as to the sample seized at the place of occurrence was the sample which reached the chemical examiner’s lab. Since there is no sample seal in the seizure mahazar and there is no date in the sample seal separately produced before court, a genuine doubt is created regarding the sample seal affixed on the sample bottle, on the date of occurrence. The benefit of that doubt should go to the revision petitioner. ## 13. In **Moothedath Sivadasan 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. 14. In **Sasidharan v. State of Kerala [2007 (1) KLT 720]** , this Court held that, the prosecution has a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, reached the hands of the chemical examiner in a foolproof condition. ## 15. In **Madhavan v. State of Kerala [2019 (4) KLT 18]** , this Court held that, when the prosecution relies upon the report of Crl.R.P No.982 of 2012 7 chemical analysis, in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner. 16. In the forwarding note, the name of the Excise Guard with whom the sample was sent for analysis to the chemical examiner’s lab is found missing. When space is provided in the forwarding note, for the specific purpose of writing the name of the Excise Guard with whom the sample was sent to the chemical examiner’s lab, the court which forwarded the sample to the chemical examiner’s lab was expected to enter the name of the Guard in the forwarding note itself before countersigning the same. It will add authenticity to the sample sent from the court to the analyst which will help the prosecution to establish the link evidence. [Reliance placed on **Kumaran P. v. State of Kerala** ## **and another (2016 (5) KHC 632)** ]. 17. For the reasons aforementioned, the conviction and sentence rendered by the trial court as well as the appellate court Crl.R.P No.982 of 2012 8 are liable to be set aside. In the result, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court under Sections 8(1) and 8(2) of the Abkari Act are hereby set aside. He is found not guilty of the offences alleged, and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith. The revision petition stands allowed accordingly. Sd/- **SOPHY THOMAS JUDGE** smp