Sugathan @ Kunjankili v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945 CRL.REV.PET NO. 1820 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT SC 209/2004 OF ASSISTANT SESSIONS ``` ``` COURT, THIRUVALLA CRA 210/2010 OF ADDITIONAL SESSIONS COURT (ADHOC), PATHANAMTHITTA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SUGATHAN @ KUNJANKILI AGED 38 YEARS S/O. YASODHARAN, MUNDICHIRAYIL HOUSE, NADUVILEMURI, NEDUMPRAM VILLAGE, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY P.P., SRI. RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 1820 of 2012 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 1820 of 2012 ============================ Dated this the 19[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 209 of 2004 on the file of Assistant Sessions Court, Thiruvalla alleging commission of offences punishable under Sections 8(1) read with 8(2) of the Abkari Act. 2. The prosecution allegation is that the revision petitioner was seen in possession of 15 cans having capacity of 35 litres containing spirit on 05.09.2001 at 1.15 pm, in the latrine near the house of one Thyparambil Mathew and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 3 and Exts P1 to P6 were marked and identified MO1 to MO15. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of three years 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 six months. 4. Aggrieved by the conviction and sentence imposed Crl.R.P. No. 1820 of 2012 :3: by the trial Court, an appeal was preferred as Crl.Appeal No.210 of 2010 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 first contention raised is that though the occurrence was on 05.09.2001, a perusal of Ext P3 property list would reveal that the seized properties were produced before the Court on 11.09.2001. Therefore, there is a delay of six days in producing the same before the Court. PW3 would depose that no reason has been stated for the delay in producing the same before the Court. Learned counsel would further contend that no specimen seal is affixed in the mahazar or in the forwarding note. Yet another contention raised by the revision petitioner is that a perusal of Ext P6 chemical analysis report would reveal that the sample was forwarded from the Court as per letter No. T.R.329/2001 dated 19.10.2001. But admittedly the same reached the chemical analysis laboratory only on 28.10.2021. The forwarding note does not contain the date on which the samples were forwarded for chemical analysis. The learned Counsel for the revision petitioner would also contend that the forwarding note does not contain the Crl.R.P. No. 1820 of 2012 :4: name of the guard through whom the samples were sent for chemical examination. Therefore it was incumbent on the part of the prosecution to examine either the property clerk or the person through whom the contraband was sent for examination to the chemical analysis laboratory. 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. The first contention raised is that though the Crl.R.P. No. 1820 of 2012 :5: occurrence was on 05.09.2001, a perusal of Ext P3 property list would reveal that the seized properties were produced before the Court on 11.09.2001. Therefore, there is a delay of six days in producing the same before the Court. PW3 would depose that no reason has been stated for the delay in producing the same before the Court. This court in **Ramachandran v. State of Kerala (2021 (1) KLT 793** has held that unexplained delay in producing the contraband and sample before the court is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. Hence, I am of the opinion that the unexplained inordinate delay is fatal to the case of the prosecution. 8. Learned counsel would further contend that no specimen seal is affixed in the mahazar or in the forwarding note. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided Crl.R.P. No. 1820 of 2012 :6: in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. This court in **Vijayan v. State of Kerala, 2021 (5) KLT 321,** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In **Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 1030** , it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note, there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State** Crl.R.P. No. 1820 of 2012 :7: **of Kerala (2016 (1) KLT SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 793.** This court in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. 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 Crl.R.P. No. 1820 of 2012 :8: was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. A similar view was taken by this court in **Udayan v.** **State of Kerala, 2023 (1) KLT 371.** 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 revision petitioner is that a perusal of Ext P6 chemical analysis report would reveal that the sample was forwarded from the Court as per letter No. T.R.329/2001 dated 19.10.2001,but admittedly the same reached the chemical analysis laboratory only on 28.10.2021. The forwarding note does not contain the date on which the samples were forwarded for chemical analysis. The learned Counsel for the revision petitioner would also contend that the forwarding note does not contain the name of the guard through whom the samples were sent for chemical examination. Therefore, it is contended that it was incumbent on the part of the prosecution to examine either the property clerk or the Crl.R.P. No. 1820 of 2012 :9: person through whom the contraband was sent for examination to the chemical analysis laboratory, having not done so, it is fatal to the case of the prosecution. This court in **Viayan’s** case cited supra has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. This court in **Jayakumar v. State of Kerala, 2018 (1) KLT SN 65** and **Gnanaprakasham v. State of Kerala, 2021 (4) KLT OnLine 1089** has held that evidence regarding the date on which the learned Magistrate sent the sample to the laboratory and the date on which the Excise Guard referred to in the forwarding note received the sample from the court is very vital while looking for assurance regarding the question whether the very same sample allegedly drawn at the scene of occurrence reached the hands of the Analyst in a tamper proof condition. In such circumstances, the prosecution ought to have examined the thondi clerk of the court or the guard who had taken the sample to the analyst so as to prove the tamper-proof Crl.R.P. No. 1820 of 2012 :10: despatch of the sample to the laboratory. A similar view was taken by this court in **Kumaran v. State of Kerala, 2016 (4) KLT 718** , paragraph 7 of the order reads as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with_ Crl.R.P. No. 1820 of 2012 :11: _whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ In **Krishnadas v. State of Kerala, 2019 KHC 191,** this court has held that the unexplained delay in between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. 10. Admittedly, though the forwarding letter from the court is dated 19.10.2001, the sample reached the chemical analysis laboratory only on 28.10.2021. The forwarding note does not contain the date on which the sample was forwarded Crl.R.P. No. 1820 of 2012 :12: for chemical analysis and also does not contain the name of the Excise Guard through whom the samples were sent to the chemical analysis laboratory. In view of the same, there is no conclusive proof regarding the date of despatch to the laboratory, and through whom the same was sent to the laboratory. Therefore, in view of the said factual circumstances and the decisions of this court cited supra, it was incumbent on the part of the prosecution to examine either the property clerk and the guard through whom the sample was sent for chemical analysis so as to prove the date of despatch of sample and also regarding the safe custody of the samples till it was sent for chemical analysis. Having not done so, the said lacuna is fatal to the case of the prosecution. 11. 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 conviction and sentence imposed by the courts below cannot be sustained. 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 Crl.R.P. No. 1820 of 2012 :13: levelled against him. The bail bond shall stand cancelled and he 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** sbk/-