SUKUMARAN P.V v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 530/2009 OF 1[ST ]ADDITIONAL ``` ``` DISTRICT AND SESSIONS COURT,THALASSERY ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 703/2007 OF ASSISTANT ``` ``` SESSIONS COURT, PAYYANNUR ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED NO.3:`** ``` SUKUMARAN P.V AGED 44 YEARS S/O.KUMARAN, 33/06, THIMIRI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV SRI.P.U.SHAILAJAN ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, PAYYANNUR POLICE STATION, THROUGH THE PUBLICPROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN: 682 031. ``` ``` SMT. NIMA JACOB - PP ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION`** ``` ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 2 ``` ## **ORDER** This revision is at the instance of the 3[rd] accused in S.C. No.703 of 2007 on the file of Assistant Sessions Judge, Payyannur, assailing the judgment in Crl.Appeal No.530 of 2009 on the file of Additional Sessions Judge-I, Thalassery, which upheld his conviction under Section 55(b) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that, on 24.05.2006 at about 10.30 p.m., PW7, preventive officer attached to Kannur Excise Enforcement and Anti-Narcotic Special Squad and party, while doing patrol duty, received reliable information that, brewing of arrack was going on, in the house of one Mr.Shankaran, bearing No.EKP-VII/128 (old No.VIII/490) situated in Kayapoyil in Vellore. After sending Ext.P10 search memo to court, PW7 and party proceeded to that house, and found three persons engaged in manufacturing arrack, in violation of the provisions of the Abkari Act. They were arrested from the spot, and the ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 3 ``` contraband along with the utensils for manufacturing arrack were seized. 3. After taking sample of the wash, the remaining wash was destroyed at the spot itself. The accused persons along with the seized articles and records, were produced before the Excise Office, Payyannur, where crime was registered against them. PW5 conducted preliminary investigation and PW6 completed it, and laid charge sheet against the accused persons under Section 55(b) of the Abkari Act. 4. The 1[st] accused absconded and his case was split up and refiled. 5. On appearance of accused Nos.2 and 3 before the trial court, charge was framed under Section 55(b) of the Abkari Act, to which, they pleaded not guilty, and claimed to be tried. PWs.1 to 7 were examined and Exts.P1 to P12 were marked from the side of prosecution, to prove its case. 6. On closure of prosecution evidence, accused ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 4 ``` Nos.2 and 3 were questioned under Section 313 of Cr.P.C., and they denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 7. On appreciating the facts and evidence, and on hearing the rival contentions from either side, the trial court found accused Nos.2 and 3 guilty under Section 55(b) of the Abkari Act, and each of them were convicted and 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 six months. 8. Aggrieved by the conviction and sentence imposed by the trial court, the 3[rd] accused preferred Crl.Appeal No.530 of 2009. The appellate court, on re-appreciating the facts and evidence, confirmed the conviction, but the substantive sentence was modified and reduced to rigorous imprisonment for 18 months, and though the fine amount was retained, the default sentence was reduced to simple imprisonment for three months. ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 5 ``` Impugning the appellate court judgment, the 3[rd] accused has preferred this revision. 9. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments of conviction and sentence imposed on the revision petitioner, by the courts below. 10. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 11. Learned counsel for the revision petitioner is assailing the conviction and sentence, pointing out some material defects and irregularities, which, according to him, are sufficient to vitiate the trial. First of all, it is pointed out that, there is no specimen impression of the seal in Ext.P1 seizure mahazar. On going through Ext.P1 seizure mahazar, it could be seen that, there is no impression of the specimen seal or description of the nature of the seal used, to seal the sample bottle. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 6 ``` authenticity. When there is specimen impression of the seal in the seizure mahazar and the very same seal is found in the sample bottle, it will guarantee that the sample was taken at the spot of seizure itself, from the contraband possessed by the revision petitioner. The prosecution is duty bound to prove tamper proof despatch of the sample, from the point of its seizure, till the point of its analysis, before the chemical examiner's lab. Since the seizure mahazar is devoid of the specimen impression of the seal which was supposed to be used for sealing the sample bottle, one cannot say, when that seal was affixed on the sample bottle. In the absence of specimen impression of the seal in the seizure mahazar, no sanctity could be attached to the statement in the chemical analysis report that, the seals on the bottle were found tallied with the sample seal provided. Unless and until prosecution is able to prove that, there was tamper proof despatch of the sample taken from the contraband seized from the revision petitioner till it reached the hands of the ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 7 ``` chemical examiner, we cannot say that the link evidence was established. [See **Sasidharan v. State of Kerala** [2007(1) KHC 275], **Moothedath Sivadasan v. State of Kerala** [2021 (1) KLT 744], and **Bhaskaran v. State of Kerala** [2020 KHC 5296]]. 12. The next contention taken up by the revision petitioner is that, Ext.P7 inventory is not liable to be acted upon, since the certification was made by the Judicial Magistrate and not by an Executive Magistrate. On going through Ext.P7 inventory, it could be seen that, it was prepared by the Excise Inspector, Excise Range Office, Payyannur, who was not an authorized officer, and the Assistant Excise Commissioner, Kannur only countersigned the same. As per Section 53A of the Abkari Act, the inventory is to be prepared by an authorized officer, and the said requirement cannot be met by some other officer preparing the inventory report, and submitting that report to the authorized officer. Sub section 1 of Section 53A of the Abkari Act provides that, the authorized officer under ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 8 ``` Section 53A of the Abkari Act is the authorized officer referred to in Section 67B of the Abkari Act. Section 67B provides that the authorized officer must be an officer authorized by the Government by notification in the Gazette, and the said officer is an officer not below the rank of an Assistant Excise Commissioner. SRO 671/1975 provides that, Assistant Commissioners in charge of Excise Division are authorized officers under Sub section 1 of Section 67B of the Abkari Act, for the purpose of Section 67B within their respective jurisdiction. Since Ext.P7 inventory was prepared by the Excise Inspector, Payyannur Range, he was not an authorized officer referred to in Section 67B of the Abkari Act. So, for that reason alone, Ext.P7 inventory is not liable to be acted upon. Moreover, Ext.P7 inventory itself shows that, the wash found in an aluminum pot having capacity of 15 litres and wash found in two plastic pots each having capacity of 15 litres, were destroyed at the spot, after taking sample. The Excise Inspector was not supposed to destroy the wash at the ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 9 ``` spot without complying with the provisions of Section 53A(2) of the Abkari Act. Section 53A of the Abkari Act was inserted by Act 1 of 2003 with effect from 03.09.2002. The date of detection of the offence, in the case on hand was on 24.05.2006. So, the preventive officer who detected the offence or even the Excise Inspector was not supposed to destroy the contraband seized, without following the procedural mandate of Section 53A of the Abkari Act. Since the contraband was destroyed without complying with the procedure mentioned in Section 53A of the Abkari Act, that illegality cannot be corrected and hence, the prosecution will fail to prove seizure of wash, from the aluminum pots as well as from the plastic pots. 13. Learned counsel for the revision petitioner, relying on the decision in **Sathyan v. State of Kerala** [2023 (3) KHC 97], would contend that, the certification in Ext.P7 inventory made by a Judicial Magistrate, cannot be acted upon. Relying on the full bench decision in **Mammoo v. State of Kerala** [1979 KHC 348] and ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 10 ``` **Santhosh T.A. and another v. State of Kerala** [2017 (5) KHC 107], this Court in **Sathyan’s case** cited supra, held that, a Judicial Magistrate cannot entertain an application under Section 53A of the Abkari Act, since the act contemplated by it is not a judicial one, but executive. 14. In **Santhosh T.A. and another v. State of Kerala** [2017 (5) KHC 107], cited supra this Court held that, the Magistrate referred to in Section 53A(2) is not a Judicial Magistrate, but an Executive Magistrate. It was, on the basis of Section 3(4) of Cr.P.C. which defines functions exercisable by a magistrate which reads thus; - “ 3. Construction of references- - (1) xxxxxx - (2) xxxxxx - (3) xxxxxx (4) “Where under any law, other than this Code, the functions exercisable by a Magistrate relate to matters- (a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 11 ``` detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrte; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exericisable by an Executive Magistrate.” 15. Going by the provisions contained in the Criminal Procedure Code, it was held that, administrative matters are to be dealt with by the Executive Magistrate, and not by the Judicial Magistrate. So also, Ext.P7 inventory is not liable to be acted upon. 16. Ext.P9 chemical analysis report shows that, the sample which was forwarded from the court reached the chemical examiner's lab only on the next day. The prosecution failed to explain satisfactorily, the reason for that delay. Since prosecution was bound to prove tamper proof despach of the sample from the point of its seizure, till it reaches the chemical examiner’s lab, unexplained ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 12 ``` delay, even if it is for one day, matters much. The Excise Guard, who took the sample from the court to the chemical examiner's lab, was not examined to explain the delay of one day in producing the sample before the lab, after it was being forwarded from court. At this point, it is pertinent to note that, Ext.P5 forwarding note does not show the name of the Excise Guard with whom the sample bottle was forwarded to the chemical examiner's lab. That also casts serious doubt regarding tamper proof despatch of the sample. For all these reasons it has to be held that, prosecution failed to establish the link evidence. Along with that, the testimony of PW2, the independent witness, that he did not witness the search and seizure conducted at the house of Sri.Shankaran, assumes significance. The revision petitioner was in no way connected with the house of Sri.Shankaran, though the 1[st] accused was stated to be his son in law. So also, presence of the revision petitioner in the house of Sri.Shankaran at the time of search and seizure, becomes doubtful. The conviction and sentence of ``` CRL.REV.PET NO. 1128 OF 2014 ``` ``` 13 ``` the revision petitioner, by the trial court as well as the appellate court, without noticing these material aspects, are liable to be interfered with. 17. In the result, the conviction and sentence imposed on the revision petitioner (A3), by the courts below, are hereby set aside. The revision petitioner is found not guilty of the offence punishable under Section 55(b) 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