SIVARAJAN v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 20[TH] DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945** **CRL.REV.PET NO. 3571 OF 2009** **AGAINST THE ORDER/JUDGMENT CC 1721/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM CRA 194/2002 OF III ADDITIONAL DISTRICT COURT, KOLLAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SIVARAJAN, AGED 44 YEARS, DIVAKARA MANDIRAM, KIZHAKKE CHERRY, PERUMON,, PANAYAM VILLAGE, KOLLAM TALUK. BY ADV SRI.S.SIVARAMAN ## **RESPONDENT/RESPONDENT//COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP - M.C.ASHI **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.3571 of 2009 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.3571 of 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of September, 2023 ## **ORDER** The Revision Petitioner is the accused in CC No.1721 of 1998 on the files of Judicial Magistrate of First Class, Kollam, alleging commission of offence punishable under Section 55(a) & (i) of the Abkari Act. 2. The prosecution case is that on 07.05.1996 at 6.30 P.M. the accused was found with 18 litres of illicit liquor concealed in 4 cans inside his shop room attached to his house, XV/632 Perinadu Panchayat, Divakara Mandiram, Panayam Village and committed the above said offence. 3. To prove the case of the prosecution, PWs 1 to 5 were examined, Exts P1 to P4 and MOs 1 to 5 were marked. The trial court found the accused/revision petitioner guilty and sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.25,000/- and in default of payment of the fine, to undergo simple imprisonment for a period of two months. Though CRL. R.P. No.3571 of 2009 :3: an appeal was preferred against the conviction and sentence as Crl. Appeal No.194/2002, the Sessions Court, Kollam dismissed the same confirming the order of conviction and sentence. 4. On going through the records, the following lacunas were seen in the prosecution case. No arrest memo and arrest intimation were seen produced before the trial court, which makes the arrest and seizure itself doubtful. Ext.P1 is the mahazar prepared, which does not contain the sample seal. No forwarding note is seen produced and marked. It is also seen that the date of occurrence is 07.05.1996 and Ext.P1 mahazar dated 07.05.1996 was produced before the trial court only on 23.12.1996. Likewise, Ext.P2 search list is also produced only on 23.12.1996. Ext.P3 is the Crime Occurrence Report, which was also produced before the court only on 09.05.1996, though the occurrence was on 07.05.1996. The delay production of these documents before the court is not explained by the prosecution. A perusal of the chemical analysis report produced as Ext.P4, it is seen that the samples have been forwarded from the Judicial First Class Magistrate Court, Kollam 17.12.1998 and the same reached CRL. R.P. No.3571 of 2009 :4: the chemical analysis laboratory only on 19.12.1998 and there is a delay of two days, which is not explained. 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. Admittedly, no arrest memo or arrest intimation was produced by the prosecution. The Apex Court in _**D.K.Basu v.**_ CRL. R.P. No.3571 of 2009 :5: _**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 arrest. This court in _**Baburaj**_ ’s case supra has held that the non-production 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 noncompliance 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 noncompliance 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. CRL. R.P. No.3571 of 2009 :6: Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 7. In Ext.P1 mahazar, no sample seal is seen affixed. Likewise, no forwarding note is seen 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. 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 _**Natarajan 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 (in the present case no forwarding note is 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 CRL. R.P. No.3571 of 2009 :7: 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 in _**Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]**_ . 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. 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. It is also seen that the date of occurrence is 07.05.1996 and Ext.P1 mahazar dated 07.05.1996 was produced before the trial court only on 23.12.1996. Likewise, Ext.P2 search list is also produced only on 23.12.1996. Ext.P3 is the Crime Occurrence CRL. R.P. No.3571 of 2009 :8: Report, which was also produced before the court only on 09.05.1996, though the occurrence was on 07.05.1996. The delay in production of these documents before the court is not explained by the prosecution. A perusal of the chemical analysis report produced as Ext.P4, it is seen that the samples have been forwarded from the Judicial First Class Magistrate Court, Kollam 17.12.1998 and the same reached the chemical analysis laboratory only on 19.12.1998 and there is a delay of two days, which is not explained. This court in _**Balachandran v. State of Kerala [2020 (3) KHC 697]**_ and _**Krishnadas v. State of Kerala [2019 KHC 191]**_ has held that such lacuna will lead to suspicious circumstances, the benefit of which must go to the accused. 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 CRL. R.P. No.3571 of 2009 :9: the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act 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** sm/