Sivan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 CRL.REV.PET NO. 900 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT SC 199/2008 OF THE ASSISTANT SESSIONS ``` ``` COURT, CHENGANNUR CRA 154/2009 OF ADDITIONAL SESSIONS COURT-I,MAVELIKKARA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SIVAN ``` ``` S/O NANU, VALIYAKATTIL THEKKETHIL, GRAMAM MURI, ENNAKKADU VILLAGE,, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. ``` ``` BY ADV SRI.AJITH MURALI ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. PP - RENJITH GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 900 of 2010 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 900 of 2010 ============================ Dated this the 5[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 199 of 2008 of Asst. Sessions Court, Chengannur alleging commission of offences punishable under Sections 8(1) & (2) of the Abkari Act. 2. The prosecution allegation is that, on 01.08.2006 at 8 pm, the Excise Inspector, Chengannur and his party, during the course of their patrol duty through the Ennakad-Ulunthi public road, found the accused in possession of 1 litre of arrack in a bottle of 1 litre capacity and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 6 and Exts P1 to P8 were marked. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. Crl.R.P. No. 900 of 2010 :3: 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.154 of 2009 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned Counsel appearing for the revision petitioner raised the following contentions. In Ext P3 mahazar, no specimen seal is seen affixed and the description regarding the seal affixed in the sample is also not mentioned. The revision petitioner further contended that there is no forwarding note showing the samples being forwarded to the chemical analysis laboratory. It is further contended by the learned Counsel for the revision petitioner that no signature of the accused is seen in the label affixed to the sample and this aspect has been admitted by PW1, detecting officer in his cross-examination. It is further contended that the occurrence was on 01.08.2006 and the chemical analysis report was ready on 28.12.2006, but the complaint was filed only 07.07.2007. This unexplained delay in completing the investigation is fatal to the prosecution. It is also further contended that a perusal of Ext P8 chemical analysis report would reveal that the samples were sent from the Court on 13.10.2006 and reached the chemical analysis laboratory only on 16.10.2006. There is a Crl.R.P. No. 900 of 2010 :4: delay of three days which is not explained and the same is fatal to the case of the prosecution. 6. 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. 7. The first contention is that in Ext P3 mahazar, no specimen seal is seen affixed and the description regarding the seal affixed in the sample is also not mentioned and further that no forwarding note showing the samples being forwarded to the chemical analysis laboratory is produced. The purpose Crl.R.P. No. 900 of 2010 :5: of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. In **Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 1030** , it is held that when the specimen seal is Crl.R.P. No. 900 of 2010 :6: not affixed on the seizure mahazar and in the forwarding note (in the present case no forwarding note is produced and marked), 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 **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** A similar view was taken by this court in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT** **744** and held that since no specimen impression of seal is seen affixed in the seizure mahazar 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. 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 tamper-proof condition. Relying on the judgment of the Apex Court in **State of Rajasthan v. Daulat Ram, AIR 1980** Crl.R.P. No. 900 of 2010 :7: **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. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT 371.** 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. 8. Next contention that no signature of the accused is seen in the label affixed to the sample and that the said aspect having been admitted by PW1, the detecting officer in his cross-examination coupled with the fact that no specimen seal is seen affixed in P3 mahazar, cast a doubt on the prosecution Crl.R.P. No. 900 of 2010 :8: case that the samples have been taken at the spot. 9. Further contention is that a perusal of Ext P8 chemical analysis report would reveal that the samples were sent from the Court on 13.10.2006 and reached the chemical analysis laboratory only on 16.10.2006 and there is a delay of three days which is not explained and the same is fatal to the case of the prosecution. In **Krishnadas v. State of Kerala, 2019 KHC 191,** this court has held that the unexplained delay in between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. 10. Further contention raised by the counsel for the revision petitioner is regarding the delay in completing the investigation. The occurrence was on 01.08.2006 and the chemical analysis report was ready on 28.12.2006, but the complaint was filed only 07.07.2007. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support Crl.R.P. No. 900 of 2010 :9: of his contentions. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted_ Crl.R.P. No. 900 of 2010 :10: _only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 11. 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 Crl.R.P. No. 900 of 2010 :11: the conviction and sentence passed by the courts below and the 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** sbk/-