Sivarman s/o Vasu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** ## **Crl.Rev.Pet.No.436 OF 2012** **AGAINST THE JUDGMENT IN SC 230/2007 DISPOSED OF BY THE ASSISTANT SESSIONS COURT, KATTAPPANA, AND MODIFIED IN CRA 135/2010 OF IV ADDITIONAL SESSIONS JUDGE (ADHOC-II), THODUPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED NO.1:** **SIVARAMAN S/O.VASU, MANAKKATTUSSERI HOUSE, UDUMBANCHOLA VILLAGE.** ## **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/STATE:** **STATE OF KERALA** **REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.128/2006 OF SANTHANPARA POLICE STATION, IDUKKI DISTRICT 682 031.** ## **SMT MAYA M N -PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.06.2020, THE COURT ON 01.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.436/2012 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.436 of 2012 ----------------------------------------Dated this the 1[st] day of July, 2020 ## **O R D E R** The petitioner is the first accused in the case S.C.No.230/2007 on the file of the Court of the Assistant Sessions Judge, Kattappana. 2. The prosecution case is as follows: On 24.04.2006, the Sub Inspector (PW4) of Santhanpara police station was conducting patrol duty with police party. At about 20:20 hours, when he reached Udumbanchola Town, he got reliable information that a person was selling arrack at the hollow bricks manufacturing centre near Shila Hotel. PW4 and the police party with him reached the aforesaid place. They saw the first accused standing there with a can in one hand and a glass in the other hand. Another person was standing near the first accused. On Crl.R.P.No.436/2012 3 seeing the police party, the person who was standing near the accused ran away and escaped. PW4 obstructed the first accused and inspected the can held by him. By the smell of the liquid contained in the can, PW4 was convinced that it was arrack. PW4 arrested the first accused at 20:30 hours. He gave intimation regarding the arrest to the wife of the first accused. She refused to accept the intimation. The wife and the daughter of the first accused forcibly rescued him from the custody of the police. Then, PW4 and the police party followed them and took the first accused into custody by force. PW4 took three samples of the liquid from the can and sealed the sample bottles and affixed label, bearing his signature and the signature of the witnesses and the first accused, on the sample bottles and the can containing the remaining liquid and seized the articles as per Ext.P1 mahazar. 3. PW4 conducted the initial investigation of the case. After completing the investigation, PW5 Sub Inspector filed final report against the first accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and against the Crl.R.P.No.436/2012 4 second and the third accused, who are the wife and daughter of the first accused, for the offence punishable under Section 61 of the Abkari Act. 4. All the three accused faced trial. The trial court framed charge against the accused for the offences punishable under Sections 8(1) read with 8(2) and 61 of the Abkari Act. The accused pleaded not guilty and they claimed to be tried. 5. The prosecution examined PW1 to PW5 and marked Exts.P1 to P14 documents and material objects MO1 to MO3. No evidence was adduced by the accused. 6. The trial court found the second and the third accused not guilty of the offence punishable under Section 61 of the Abkari Act and acquitted them. The trial court found the petitioner/first accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of one year 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. Crl.R.P.No.436/2012 5 7. The first accused filed Crl.A.No.135/2010 before the Court of Session, Thodupuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the first accused but modified the sentence against him and reduced it to simple imprisonment for a period of six months and fine of Rs.1,00,000/- and in default of payment of fine, simple imprisonment for a period of two months. 8. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the first accused has filed this revision petition. 9. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 10. Learned counsel for the petitioner contended that the petitioner was falsely implicated in the case by the police on political influence. 11. PW4 Sub Inspector has given evidence regarding the occurrence in detail. PW3 is the police constable who was in the Crl.R.P.No.436/2012 6 police party led by PW4. His evidence corroborates the testimony of PW4 regarding the material particulars of the occurrence. 12. PW1 is one of the independent witnesses examined by the prosecution. He has deposed that he did not see the police party seizing arrack from the possession of the petitioner. However, he has stated that he saw the petitioner along with the police party and that he had signed Ext.P1 seizure mahazar. He has also given evidence that he saw a can inside the police jeep. Thus, even though PW1 was declared hostile to the prosecution, his evidence supports the prosecution case to some extent. 13. PW2 is another independent witness examined by the prosecution. He has given evidence that he saw the police party taking the petitioner into custody at about 20:30 hours and that there was a can in the hands of the Sub Inspector at that time. But, he would say that he did not see the police seizing any can containing arrack from the possession of the petitioner. PW2 also admitted his signature in Ext.P1 seizure mahazar. He has also stated that, when he signed the mahazar, PW1 was also present there. The evidence of PW2 also supports the prosecution case to Crl.R.P.No.436/2012 7 some extent, though he was also declared hostile to the prosecution. 14. On the basis of the evidence of PW1 to PW4, the courts below have concurrently found that the prosecution has been able to establish that MO1 can was seized from the possession of the petitioner. I find no illegality, impropriety or perversity in the appreciation of evidence by the courts below in reaching that conclusion. There is no sufficient ground to interfere with the finding by the courts below that MO1 can was seized from the possession of the petitioner by the police. It follows that the plea of the petitioner that he was falsely implicated in the case cannot be accepted. 15. However, the petitioner is entitled to be acquitted on two grounds: (1) there is doubt as to whether the seizure of the can containing liquid had taken place in the manner alleged by the prosecution and (2) link evidence is absent to establish that Ext.P14 chemical analysis report relates to the very same sample allegedly drawn from the liquid contained in MO1 can. The reasons to reach this conclusion are as follows. Crl.R.P.No.436/2012 8 16. Ext.P7 is the arrest memo allegedly prepared by PW4 Sub Inspector at the spot of the occurrence on arresting the petitioner. PW4 has deposed that he arrested the petitioner at 20:30 hours on 24.04.2006. The time and date of the arrest are mentioned in Ext.P7 arrest memo as 20:30 hours on 24.04.2006. According to PW4, on returning to the police station with the petitioner and the articles, he registered Ext.P10 first information report as Crime No.128/06 of Santhanpara police station. Ext.P10 first information report shows that it was at 22:30 hours on 24.04.2006 that the case was registered. But, Ext.P7 arrest memo bears the crime number of the case. The prosecution has not explained how Ext.P7 arrest memo prepared at 20:30 hours on 24.04.2006 bears the crime number of the case which was registered at 22:30 hours on the same day. PW4 has not stated that he had inserted the crime number in the arrest memo subsequent to the registration of the first information report. 17. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the Crl.R.P.No.436/2012 9 occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See **Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134** and **Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48).** When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See **Shyam Bharia v. State of Madhya Pradesh: 2005 Cri.L.J 1907** ). It creates doubt as to the manner in which Crl.R.P.No.436/2012 10 seizure of the contraband substance and the arrest of the accused were effected by the police officers (See **K. Kalyani v. State : MANU/TN/1070/2019** ). 18. In the instant case, in the absence of any explanation offered by the prosecution regarding the presence of the crime number of the case which was registered at 22:30 hours on 24.04.2006 in Ext.P7 arrest memo prepared at 20:30 hours on the same day, it has to be found that the occurrence had taken place not in the manner alleged by the prosecution. 19. PW4 has deposed that he took three samples of liquid from the can and that he sealed the can containing the remaining liquid and he also sealed the sample bottles and affixed label, bearing his signature and the signature of the accused and the witnesses, on the sample bottles. Ext.P1 seizure mahazar also contains recital to that effect. 20. Ext.P11 is the property list prepared by PW4 for producing the material objects before the court. The description of the articles given in Ext.P11 property list shows that there was seal on the can and the sample bottles but there was no label on Crl.R.P.No.436/2012 11 them. It creates doubt as to whether the very same samples drawn and seized at the scene of the occurrence were produced before the court without any tampering. 21. Ext.P13 is the copy of the forwarding note prepared by PW4 for sending one of the samples for chemical analysis. In the description of the sample bottle given in Ext.P13 forwarding note also, it is not mentioned that it had label on it, bearing the signature of atleast the witnesses or the accused. This creates doubt as to whether the very same sample allegedly drawn at the spot of the occurrence by PW4 was forwarded for analysis. 22. True, at the time of examination of PW1, the cap portion of the sample bottles (which were not sent for analysis) were opened before the court and slips were taken from the wrapper containing the sample bottles and PW1 and PW2 identified their signature in those slips. These slips have been marked as Exts.P2 and P3. PW4 has not given any evidence that he only put a piece of paper containing the signature of the accused and the witnesses inside the wrapper containing the sample bottles. His evidence is that he had affixed such label on Crl.R.P.No.436/2012 12 the sample bottles. Therefore, on the basis of Exts.P2 and P3 slips, it cannot be found that label bearing the signature of the witnesses and the accused had been affixed or pasted on the sample bottles produced before the court. 23. In the aforesaid circumstances, there is no assurance that the very same sample allegedly drawn by PW4 at the spot of the occurrence from the liquid in MO1 can had reached the court and the very same sample was forwarded for chemical analysis. It follows that, there is also no assurance that Ext.P14 chemical examination report relates to the very same sample allegedly drawn at the spot of the occurrence by PW4 from the liquid contained in MO1 can. ## 24. 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 be conclusive proof by itself. The_ Crl.R.P.No.436/2012 13 _sample seized and that tested have to be corelated"._ 25. 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. 26. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the petitioner is entitled to get the benefit of doubt on the two Crl.R.P.No.436/2012 14 grounds mentioned earlier. 27. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/first accused under Section 8(1) read with 8(2) of the Abkari Act are set aside. The petitioner, who is the first accused in the case, 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 P S to Judge