Sugatha, D/o Subhashini v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945`** ## **`CRL.REV.PET NO. 129 OF 2011`** ``` AGAINSTTHEJUDGMENTINCRL.APPEALNO.299/1999OF ADDITIONALDISTRICT&SESSIONSJUDGE,FASTTRACKCOURT-I, THIRUVANANTHAPURAM ``` ``` CC479/1997OFJUDICIALFIRSTCLASSMAGISTRATE-I,ATTINGAL ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SUGATHA,D/O.SUBHASHINI, PLAVILAPUTHENVEEDU,KANNAMBARA,BHARATHANOOR,ANAKUDIMURI, PALODEVILLAGE,NEDUMANGADTALUK. ``` ``` BYADVSRI.SHAJINS.HAMEED ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` THESTATEOFKERALA,REPRESENTEDBY THEPUBLICPROSECUTOR,HIGHCOURTOFKERALA,,ERNAKULAM. ``` ``` SMT.NIMAJACOB,PUBLICPROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLY HEARDON14.11.2023,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` Crl.R.P No.129 of 2011 2 ## **O R D E R** This revision is at the instance of the accused in C.C. No.479 of 1997 on the file of the Judicial First Class Magistrate I, Attingal, assailing the judgment in Crl.Appeal No.299 of 1999 on the file of Additional District and Sessions Judge, Fast Track Court-I, Thiruvananthapuram, which upheld her conviction and sentence under Sections 55(a) and 55(g) of the Abkari Act. 2. Prosecution case is that on 16.04.1996, at 10.00 a.m., the revision petitioner was found in possession of 5 litres of illicit arrack, and 20 litres of wash for the purpose of brewing illicit arrack in her house. PW1, the Excise Inspector and party detected the offence. He himself investigated the case and laid charge sheet against the accused. 3. On appearance of the accused before the trial court, particulars of the offence was read over and explained, to which she pleaded not guilty and claimed to be tried. PWs 1 to 4 were examined, Exts. P1 to P4 were marked and MOs I to III were identified. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. She Crl.R.P No.129 of 2011 3 denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 4. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial court found her guilty under Section 55(a) and 55(g) of the Abkari Act and sentenced her to undergo simple imprisonment for two years and fine of Rs.25,000/-, with a default sentence of simple imprisonment for six months. Though she was found guilty under Section 55(a) and 55(g) of the Abkari Act, no separate sentence was seen awarded under each count and it is not clear for which offence she was sentenced to undergo simple imprisonment for two years and fine of Rs.25,000/-. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.299 of 1999. On reappreciation of the facts and evidence, the appellate court found no reason to interfere with her conviction and sentence, and so the appeal was dismissed, against which, she has preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate Crl.R.P No.129 of 2011 4 court. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. Learned counsel for the revision petitioner submitted that though the case of the prosecution is that, on getting reliable information, PW1 and Excise Party proceeded to the house of the revision petitioner and conducted search, no search memo was produced or marked in support of their case. The search itself becomes doubtful, in the absence of search memo. 9. The next contention raised by learned counsel for the revision petitioner is that the independent witnesses, PWs 3 and 4 turned hostile to the prosecution and so the only remaining evidence is that of the official witnesses. When the testimony of official witnesses is reliable and trustworthy, there is nothing preventing the court from relying on their testimony, even if independent witnesses turn hostile to the prosecution. But in the case on hand, the detection as well as the investigation was done by PW1, Excise Inspector. Moreover, the final report was seen filed against the revision petitioner on the date of detection itself, as seen from the dated seal in the final report. So the contention Crl.R.P No.129 of 2011 5 of the revision petitioner that the investigation done by the detecting officer himself, caused serious prejudice to her assumes significance, as the final report was filed on the date of detection itself. It seems that without conducting proper investigation, the charge sheet was filed by the detecting officer himself in a hasty manner, on the date of detection itself. 10. No property list was produced or marked from the side of the prosecution. The property list is a material document to verify, when the articles seized were produced before the jurisdictional Magistrate, so as to find out the delay if any occurred, and also to show tamper proof despatch. Absence of property list gives room for doubting timely production of the articles before the jurisdictional Magistrate. In Ext.P4 Chemical Analysis Report, the date of forwarding the sample to the Chemical Analyst will not find a place. The reference letter was dated nil as stated in the Chemical Analysis Report. The sample reached the Chemical Analyst on 07.06.1996. Since the date of forwarding the sample is not seen in the Chemical Report, the delay, if any, in reaching the sample before the Chemical Examiner’s Laboratory cannot be verified. Crl.R.P No.129 of 2011 6 11. The seizure mahazar, which was marked as Ext.P1 does not bear the specimen impression of the seal. The specimen seal used in the sample bottle should be the seal in the seizure mahazar. Though in the Chemical Examination Report, the Examiner has stated that the seals on the bottles were intact and found tallied with the sample seal provided, as there was no seal in the seizure mahazar, we cannot verify whether the very same seal was affixed in the sample bottle. So that statement is of no consequence. 12. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle becomes doubtful. 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. 13. In **Bhaskaran v. State of Kerala [2020 KHC** **5296]** , this Court held that the specimen of the seal shall be Crl.R.P No.129 of 2011 7 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. 14. In the absence of convincing evidence as to the production of the specimen impression of the seal to the Chemical Examiner, no evidentiary value can be attached to the chemical analysis report, as held by this Court in **Rajamma v. State of Kerala [2014 (1) KLT 506]** . 15. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused, was the sample which reached the hands of the Chemical Examiner. Since prosecution failed to prove the same, we cannot say that the link evidence was established. In **Sasidharan v. State of Kerala [2007 (1) KLT 720]** , this Court held that the prosecution has a duty to prove that, it was the sample taken from the contraband Crl.R.P No.129 of 2011 8 liquor seized from the accused, reached the hands of the Chemical Examiner in a foolproof condition. 16. The forwarding note also is not seen produced or marked by the prosecution. The specimen impression of the seal affixed in the forwarding note was liable to be compared by the Chemical Examiner with the seal found in the sample bottle for verifying the genuineness of the sample reached before the Laboratory. But in this case, no forwarding note was seen prepared or forwarded to the court. 17. The forwarding note is a material document in proving the link evidence that the sample of the contraband seized from the accused reached the court as well as the Chemical Examiner’s Laboratory. In **Ajayakumar v. State of Kerala [2021 KHC 3872]** , this Court held that in the absence of forwarding note, the link evidence could not be said to be established, and hence the only possible conclusion is that, the prosecution failed to prove that the sample seized from the accused was the sample which reached the court, as well as the Chemical Examiner’s Laboratory. So the non-production of the forwarding note also is fatal to the prosecution case. Crl.R.P No.129 of 2011 9 18. The reasons aforementioned are sufficient to doubt the veracity of the prosecution case, and the benefit of that doubt should go to the revision petitioner. Absence of specimen impression of the seal in the seizure mahazar, absence of forwarding note, absence of search memo, absence of property list, etc. etc. speaks against the prosecution and hence the impugned judgments of conviction and sentence are liable to be set aside. 19. In the result, the revision petition is allowed, setting aside the impugned judgment of conviction and sentence. The revision petitioner is found not guilty under Section 55(a) and 55(g) of the Abkari Act and she is acquitted thereunder. Her bail bond is cancelled and she is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-