Subha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 CRL.REV.PET NO. 74 OF 2013** **AGAINST THE ORDER/JUDGMENT IN SC 420/2008 OF II ADDITIONAL SUB COURT,KOZHIKODE CRA 594/2011 OF ADDITIONAL DISTRICT COURT KOZHIKODE-III / II ADDITIONAL MACT, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SUBHA AGED 40 YEARS W/O.NARAYANAN PADALIYIL HOUSE, CHATHAMANGALAM AMSOM AND DESOM, KOZHIKODE TALUK BY ADV SRI.P.V.ANOOP ## **RESPONDENT/RESPONDENT/COMPLAINANT&STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031 ## **OTHER PRESENT:** PP – SRI.RENJIT GEORGE **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.R.P. No.74 of 2013 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL.R.P. No.74 of 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 420 of 2008 on the files of Additional Assistant Sessions Judge-II, Kozhikode, alleging commission of offences punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 25.08.2007 at about 1.15 pm, at the Kunnamangalam-Mukkom Road in front of the 'Kopra chev' situated at Chathamangalam amsom, the revision petitioner/accused was found in possession of 3 litres of illicit arrack in a plastic can having the capacity of 5 litres and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 8 and Exts.P1 to P7 were marked and MO1 was identified. The trial Court found the accused guilty and convicted her to undergo rigorous :3: CRL.R.P. No.74 of 2013 imprisonment for a period of 6 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 two months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.594 of 2011 before the IInd Addl. Sessions Judge, Kozhikode, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned counsel for the revision petitioner raised the following contentions: The seizure was on 25.08.2007 and the contraband was produced before the court only on 04.09.2007 and the said delay is not seen explained. It is further contended that a perusal of Ext.P6 forwarding note would show that the sample was forwarded to the chemical analysis laboratory only on 15.09.2007 and the period from 04.09.2007 to 15.09.2007, the safe custody of the same has not been explained by any of the witnesses examined on the side of the prosecution. Yet another contention raised is regarding the delay in CRL.R.P. No.74 of 2013 :4: completing the investigation which goes against the mandate of Section 50 of the Abkari Act. 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. Let me first consider the first contention that there is a delay in the production of the alleged contraband before the court. On a CRL.R.P. No.74 of 2013 :5: perusal of Ext.P3 it would reveal that the alleged contraband and the sample were produced before the court on the very same day of seizure i.e., on 25.08.2007 and the court has entrusted the same to the Excise Inspector, to be produced before the court on 30.08.2007, since he was holding the charge of the Jurisdictional Magistrate and due to the indenting onam holidays. It is seen that the same was produced on 04.09.2007 and on the same day it was entrusted to the Excise Inspector for safe custody, since there is no space in the property room attached to the court. Therefore, I find that since the alleged contraband and sample were produced on the date of seizure itself, the contention raised by the learned counsel for the revision petitioner cannot be accepted. 8. The second contention is that a perusal of Ext.P6 forwarding note would show that the sample was forwarded to the chemical analysis laboratory only on 15.09.2007 and the period from 04.09.2007 to 15.09.2007, the safe custody of the same has not been explained by any of the witnesses examined on the side of the prosecution. Though the Thondi Clerk was examined as PW6, there is no evidence CRL.R.P. No.74 of 2013 :6: adduced regarding the date on which the alleged contraband and sample were received in the court, after it was seen entrusted with the Excise Inspector on 04.09.2007. Since no evidence has been adduced to prove the safe custody of the contraband during the said period from 04.09.2007 to 15.09.2007, the same is fatal to the prosecution case. 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 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 CRL.R.P. No.74 of 2013 :7: 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. 9. Yet another contention raised by the learned counsel for the petitioner is regarding the delay in the completion of the investigation. Section 50 of the Abkari Act mandates that every investigation for the offence under the Act shall be completed without unnecessary delay. It is seen that the alleged occurrence was on 25.08.2007 and the chemical analysis report was ready on 18.10.2007 and the complaint was filed only on 24.06.2008. The revision petitioner submits that the said unexplained delay in completing the investigation is fatal to the prosecution case. The learned counsel for the revision petitioner relies on the judgments of this Court in _**Chandran @ Chandrashekaharan v. State [2016 (5) KHC 650]** ,_ _**Surendran and Another v. State of Kerala [2013(3) KHC 780** ]_ and the decision in _**Moothedath**_ CRL.R.P. No.74 of 2013 :8: ## _**Sivadasan v. State of Kerala [2021 (1) KLT 744** ]_ in support of his contentions. 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_ CRL.R.P. No.74 of 2013 :9: _before the Court immediately thereafter. It is seen that the final report was submitted 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. 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. 10. 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 CRL.R.P. No.74 of 2013 **==> picture [20 x 9] intentionally omitted <==** conviction and sentence imposed by the courts below cannot be sustained. 11. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against her. The bail bond shall stand cancelled and she 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/