Soman 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. 2878 OF 2008`** ``` AGAINSTTHEJUDGMENTDATED27.05.2008INCRL.APPEAL NO.346/2003OFIIADDITIONALSESSIONSCOURT,KOLLAM ``` ``` CC1053/1998OFJUDICIALFIRSTCLASSMAGISTRATECOURT-III, PUNALUR ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SOMAN, S/O.GOPALAN, ROHINI,PALLICKAL, MYLAM,KOTTARAKKARA. ``` ``` BYADVS. SRI.P.VIJAYABHANU SRI.P.M.RAFIQ ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATEOFKERALA,REPRESENTEDBY PUBLICPROSECUTOR,HIGHCOURTOFKERALA, ERNAKULAM. ``` ``` SHRI.RENJITGEORGE,SR.PUBLICPROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLY HEARDON09.11.2023,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` Crl.R.P No.2878 of 2008 2 ## **O R D E R** This revision is at the instance of the 1st accused in C.C.No.1053 of 1998 on the file of Judicial First Class Magistrate Court-III, Punalur, assailing the judgment in Crl.Appeal No.346 of 2003 on the file of II Additional Sessions Judge, Kollam, which upheld his conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that the 1st accused/revision petitioner, who is an Abkari contractor, had taken on lease building No.II/443 from one Mr. Rathnakaran Nair, and after obtaining licence, he was conducting an arrack godown in that building for the financial year 1995-96. Subsequently, during the period 1996-97, he obtained toddy licence as TS No.8/96-97 for conducting toddy business also in that premises. On 14.11.1996 at 6.15 p.m., PW-16, the Circle Inspector of Police, Punalur, and party searched the premises and found unauthorised possession of 5495 litres of spirit and 3234 liters of arrack in that premises by the revision petitioner. It was alleged that the revision petitioner possessed rectified spirit and arrack without any licence and he kept the same for the purpose of sale. 3. PW15 investigated the case and laid chargesheet against the revision petitioner. Thereafter, on further investigation, involvement of A2 and A3 also was found and so they were also made accused and Crl.R.P No.2878 of 2008 3 final report was filed against the three. 4. On appearance of the accused persons before the trial court, particulars of the offence was read over and explained, to which all of them pleaded not guilty. Thereupon, prosecution examined PWs 1 to 17, and marked Exts.P1 to P13. On closure of prosecution evidence, they were questioned under Section 313 of Cr.P.C. and they denied all the incriminating circumstances brought on record. DW1 was examined and Ext.D1 was marked from the defence side. 5. On hearing the rival contentions from either side, and on analysing the facts and evidence, the trial court found that the prosecution failed to prove the offence alleged against A2 and A3 and they were acquitted. A1 was found guilty under Section 55(a) of the Abkari Act and he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs.25,000/-, and in default, to undergo simple imprisonment for a period of 60 days. 6. Aggrieved by the conviction and sentence, the 1st accused/revision petitioner preferred Crl.Appeal No.346 of 2003, and the appellate court on re-appreciating the facts and evidence, upheld the conviction and sentence, and dismissed the appeal, 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 Crl.R.P No.2878 of 2008 4 revision petitioner by the trial court as well as the appellate court. 8. PW16, the Circle Inspector of Police, Punalur, and Police party detected the offence on 14.11.1996. Large quantity of rectified spirit and arrack were found in possession of A1 in the premises of his godown. PWs 1 to 8, the independent witnesses did not support the prosecution case. It has come out in evidence that the revision petitioner was having licence to conduct toddy shop during the period 1996-97. PW12, the Assistant Excise Commissioner, also admitted that fact before court and Ext.P4 is the licence issued in the name of the revision petitioner for conducting toddy shop. He was having licence to conduct arrack godown and Ext.P3 is that licence. PW12, the Assistant Excise Commissioner admitted Exts.P3 and P4 issued in the name of the revision petitioner. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out material defects, which according to him, is sufficient to vitiate the trial. 9. The first ground urged by the learned counsel for the revision petitioner is that there is no seizure mahazar prepared in this case, though a search list was seen prepared at the scene of occurrence. On going through Ext.P1 search list, it could be seen that it is having all the characteristics of a seizure mahazar though the nomenclature given is search list. It contains all the details which should have been contained in the seizure mahazar. But the important thing is that no Crl.R.P No.2878 of 2008 5 impression of specimen seal is seen in Ext.P1 document. The specimen seal in the seizure mahazar is an important factor to verify the genuineness of the sample taken at the spot with the very same specimen seal affixed on the sample bottle, which was later produced before the court and before the Chemical Examiner’s Laboratory. In the absence of specimen seal in the mahazar, there is every chance to doubt the genuineness of the sample as to whether the sample seized at the spot was the sample, which reached the Laboratory. 10. 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 Laboratory was the sample taken from the contraband allegedly seized from the possession of the accused. 11. The next contention of the learned counsel for the revision petitioner is that no forwarding note is seen prepared, or forwarded to the court along with the sample bottles. It is a material defect, which will cut at the root of the prosecution case. The forwarding note containing the specimen impression of the seal also is an important factor to verify the genuineness of the sample seized at the place of occurrence. 12. In **Bhaskaran v. State of Kerala [2020 KHC 5296]** , this Crl.R.P No.2878 of 2008 6 Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the court to satisfy the genuineness of the sample produced in the court. Moreover, the detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the nature of the seal used shall be mentioned in the seizure mahazar also. 13. The property list also is not seen prepared when the seized articles were produced before the jurisdictional Magistrate court. The entries in the property list would help to verify the date and time on which the articles seized were produced before the Magistrate. Since that document was not there, timely production of the articles before the court can be doubted. Learned counsel for the revision petitioner pointed out that the samples seized on 14.11.1996 was sent to the Analyst only on 23.06.1997 as seen from Ext.P10 Chemical Report. That delay is not explained and in the absence of property list, we are not sure whether the articles seized were produced before the court at a later point of time. 14. In the decision **Krishnadas v. State of Kerala [2019 KHC 191]** , this Court had occasion to consider the impact of delay in reaching the sample before the laboratory and it was held that when there is no explanation for the delay caused, it is a suspicious Crl.R.P No.2878 of 2008 7 circumstance, and the benefit of that suspicion must go to the accused. 15. On going through Ext.P10 Chemical Report, it could be seen that though the sample was forwarded to the Analyst on 23.06.1997, it reached the Chemical Examiner’s Laboratory only on 25.06.1997. The delay of two days in reaching the sample before the Analyst is not explained by the prosecution. 16. As per Ext.P1 search list, 18 sample bottles were sealed and taken into custody by PW16. But Ext.P10 Chemical Report shows that only 9 sample bottles reached the Laboratory. Moreover, in Ext.P1 search list, it is stated that in all the 18 bottles of 375 ml volume, 350 ml of sample was taken. But Ext.P10 Report shows that the 9 sample bottles received in the Laboratory contained 375 ml of liquid, which goes against the prosecution case, that only 350 ml of sample was taken in each bottle. 17. Though the occurrence was on 14.11.1996, the witnesses were seen questioned only in the year 1999, i.e., after a long delay of three years. The final report also was seen submitted before the court only on 15.07.1999. The delay of three years in completing the investigation and submitting the final report is not seen explained by the prosecution. 18. In **Krishnan H v. State [2015 (1) KHC 822]** , this Court Crl.R.P No.2878 of 2008 8 deprecated the practice of long delay in conducting investigation in Abkari cases and observed that in the absence of sufficient explanation, it is fatal to the prosecution. 19. In **Chandran v. State [2016 (5) KHC 650]** , this Court held that when no explanation had been given by the prosecution as to why there was delay in completing the investigation and filing the final report, the same turns fatal to the prosecution. 20. The defects noted in the foregoing paragraphs are material, which will affect the very credibility of the prosecution case. The absence of specimen impression of the seal in Ext.P1 document, whatever be its nomenclature either seizure mahazar or search list, absence of forwarding note, delay in reaching the sample before the Chemical Examiner’s Laboratory, the discrepancy in the number of sample bottles seized at the scene of occurrence, and the number of bottles which reached the Laboratory, the difference in the quantity of the liquid in the sample bottles reached before the Chemical Examiner’s Laboratory etc. etc. are strong circumstances which speak against the prosecution, and the revision petitioner is entitled to get the benefit of all those doubtful circumstances, brought on record. So the conviction and sentence under Section 55(a) of the Abkari Act, imposed by the trial court, as well as the appellate court are not sustainable, and hence set aside. Crl.R.P No.2878 of 2008 9 21. In the result, the revision petitioner is not found guilty of the offence punishable under Section 55(a) 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** DSV/-