Soman v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 2753 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 1324/2005 OF ASSISTANT ``` ``` SESSIONS COURT, NEDUMANGAD ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 715/2008 OF DISTRICT COURT & ``` ``` SESSIONS COURT, THIRUVANANTHAPURAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SOMAN HOUSE NO.50,HOUSING BOARD COLONY, KOTTAKKAKOM MURI, ARYANAD VILLAGE. BY ADV SRI.SHAJIN S.HAMEED ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SMT. NIMA JACOB - PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ``` ``` ON 20.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the accused in S.C. No.1324 of 2005 on the file of Assistant Sessions Judge, Nedumangad, assailing the judgment in Crl.Appeal No.715 of 2008 on the file of Sessions Judge, Thiruvananthapuram, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 31.12.2004 at about 8.30 a.m., the accused was found distilling illicit arrack on the western side of Karamana river in Aryanad Village. PW2, on getting reliable information, proceeded to that place along with police party, and detected the offence. The revision petitioner, who was found engaged in distilling illicit arrack was arrested then and there, and the utensils used for manufacturing illicit arrack were seized. The sample of wash and arrack were taken at the spot, sealed and labelled, and the revision petitioner along with the articles seized and the records prepared, were ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** produced before Aryanad Police Station, where crime No.521 of 2004 was registered against him under Sections 8(1) and 8(2) of the Abkari Act. After investigation, he was charge sheeted for the offences aforementioned. 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, read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 3 were examined, Exts.P1 to P5 were marked and Mos.1 to 5 were identified from the side of prosecution, to prove its case. 4. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** 8(1) and 8(2) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for two years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of three months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.715 of 2008. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision. 7. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner by the courts below. 8. When the revision petition was taken up for consideration on 30.11.2023, learned counsel for the revision petitioner submitted that, the letter sent by him ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** to the revision petitioner was returned unserved, stating reason ‘addressee expired’, and since whereabouts of the legal representatives, were not known to him, he could not take steps to implead them to prosecute the revision. So, this Court addressed SHO, Aryanad Police Station to furnish the details of legal representatives, if any, of the deceased revision petitioner. A report was received from the Inspector of Police, Aryanad Police Station stating that, he has no legal representatives, as his wife is no more, and he died issueless. The address of his nephew was furnished, but, he was not interested to get himself impleaded to prosecute the matter. Since the sentence imposed includes fine amount of Rs.1 lakh also, it will not get abated, even on the death of the revision petitioner. So, learned counsel for the revision petitioner sought permission to argue the matter on merit, and that was allowed. 9. Heard learned counsel for the revision petitioner ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** and learned Public Prosecutor. 10. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out some material defects and irregularities in the prosecution case, which, according to him, are sufficient to vitiate the trial. First of all, he drew the attention of this Court to Ext.P1 seizure mahazar, prepared at the scene of occurrence. The specimen impression of the seal used to seal the sample bottle will not find a place in the seizure mahazar. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. The specimen seal in the seizure mahazar and in the forwarding note will enable the court to satisfy the genuineness of the sample produced before the court. The nature of the seal used to seal the sample bottle also will not find a place in Ext.P1 seizure mahazar. PW2-the detecting officer, who prepared Ext.P1 seizure mahazar, has not spoken anything, regarding the nature ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** of the seal used, while he was in the witness box. The prosecution is duty bound to prove the link evidence starting from the seizure, till it reaches the hands of the analyst, and in the absence of specimen impression of the seal in the seizure mahazar and in the forwarding note, prosecution cannot succeed in establishing the link evidence. Ext.P4 forwarding note, does not contain the name of the police constable, also who took the sample to the chemical laboratory. So, prosecution failed to prove tamper proof despatch of the sample from the point of seizure, till the point of analysis before the laboratory [See **Moothedath Sivadasan v. State of Kerala** (2021 (1) KLT 744), **Bhaskaran v. State of Kerala** (2020 KHC 5296), **Balachandran v. State of Kerala** (2020 (4) KLT 137), **Madhavan v. State of Kerala** (2019 (4) KLT 18) and **Sasidharan v. State of Kerala** (2007 (1) KLT 720)]. 11. Ext.P1 seizure mahazar shows that, the aluminum pot having 50 litres capacity was seized and ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** 750 ml of wash was taken from the contents in the pot, as sample. But, it is not mentioned, what was the quantity of wash found in the aluminum pot, and no evidence is adduced as to, what happened to the wash in the pot, after taking sample. Learned counsel for the revision petitioner would say that, there is non compliance of Section 53A(2) of the Abkari Act, if there was wash remaining in the pot after taking the sample, and if it was destroyed. MO5 was a 10 litre can containing one litre of arrack. Ext.P1 seizure mahazar shows that, 180 ml of arrack was taken as sample from the arrack found in the can. But, nowhere it is stated, what was the actual quantity of arrack found in that 10 litre can. If that can was full of arrack, there is no mention as to what happened to the remaining arrack, and whether Section 53A(2) was complied with, before destroying it. These aspects will cast serious doubt regarding the genuineness of the prosecution case, and the revision petitioner is ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [37 x 9] intentionally omitted <==** entitled to get the benefit of that doubt. 12. Though the case of prosecution is that, the revision petitioner was arrested on 31.12.2004 at 8.30 a.m., the arrest memo was not seen marked in this case. Though the seizure was at 8.30 a.m. on 31.12.2004, Ext.P3 property list shows that, the samples along with other articles seized were produced before court, only on the next day i.e., 01.01.2005. That delay is not explained by the prosecution in a satisfactory manner. PW2-the detecting officer himself, conducted the investigation and laid charge sheet against the accused. A fair investigation demands that the informant and the investigator shall not be the same person. The revision petitioner would say that, since the investigation also was done by the detecting officer himself, much prejudice has been caused to him. 13. In **Bhaskaran v. State of Kerala** [2020 KHC 5296] this Court held that, when the detecting officer, who ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [44 x 9] intentionally omitted <==** registered the case himself conducted the entire investigation and filed the final report, such “one man show” has definitely caused prejudice to the accused. 14. In the case on hand, no independent witnesses were there to support the prosecution case. The testimony of PWs.1 and 2 cannot be relied upon, due to the irregularities and illegalities stated in the foregoing paragraphs. The absence of specimen impression of the seal in the seizure mahazar as well as in the forwarding note, non mentioning of the quantity of wash and arrack in the aluminum pot as well as in the can, details as to the destruction of remaining wash and arrack after taking sample etc. etc. are to be taken note of seriously, which speaks against the veracity of the prosecution case. So, the conviction and sentence imposed on the revision petitioner by the courts below, without noticing these material defects are liable to be interfered with. 15. In the result, the conviction and sentence ``` CRL.REV.PET NO. 2753 OF 2010 ``` **==> picture [44 x 9] intentionally omitted <==** imposed on the revision petitioner by the courts below are hereby set aside. The revision petitioner is found not guilty of the offence punishable under Sections 8(1) and 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS JUDGE** LU