Sundaran 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. 2796 OF 2010`** ``` AGAINST THE JUDGMENT IN SC 326/2002 OF ASSISTANT SESSIONS COURT, SULTHANBATHERY CRA 249/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SUNDARAN, S/O.SANKARAN,ALIKKAL HOUSE, MANNOORKUNNU,KUPPADI,SULTHAN BATHERY ``` ``` BY ADV SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1EXCISE RANGE OFFICER, SULTHAN BATHERY,PIN-680001 ``` ``` 2STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` PP - 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.2796 of 2010 2 ## **VIJU ABRAHAM,J** **.............................................. Crl.R.P.No.2796 of 2010 .............................................. Dated this the 9[th] day of October, 2023** ## **ORDER** Revision petitioner is the accused in S.C.No.326 of 2002 on the file of the Assistant Sessions Court, Sulthanbathery registered alleging commission of offence punishable under Section 58 of the Kerala Abkari Act. 2. The prosecution case is that on 06.12.2000 at 6.15 p.m., at Mannoorkunnu in Kuppadi amsom the accused was found in possession of 4 litres of arrack and thereby the revision petitioner/accused has committed the alleged offence. 3. The prosecution in support of their case examined PW1 to PW3 and marked Exts.P1 to P8 and identified MO1. 4 **.** The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and convicted and sentenced him to undergo rigorous imprisonment for two 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 **.** It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. Though an appeal was preferred as Crl.Appeal No.249 of 2007 before the Additional Sessions Court (Adhoc) II, Kalpetta, the same was disposed of confirming the conviction and modifying the sentence Crl.R.P.No.2796 of 2010 3 imposed by the trial court as one year simple imprisonment and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. 5. Learned counsel appearing for the revision petitioner has raised the following contentions. Learned counsel for the revision petitioner has taken a contention that in Ext.P2 mahazar no specimen seal is seen affixed nor the description of the nature of the seal affixed in the samples is mentioned therein. Petitioner further contends that a perusal of Ext.P7 chemical analysis report would show that the sample was sent from the court vide covering letter No.PR3-536 of 2000 dated 07.12.2000 through an Excise Guard Govindan, the same reached the chemical analysis laboratory only on 05.01.2001, ie. about one month after the same has been sent from the court. The said unexplained delay is fatal to the case of the prosecution especially when the Thondy Clerk or the Excise Guard through whom the sample was sent to the chemical analysis laboratory is not examined. It is also contended that the occurrence was on 06.12.2000 and the chemical analysis report was ready on 06.11.2001, still, the complaint was filed only on 25.03.2002, ie. there is a delay of four months even after receipt of chemical analysis report in filing the complaint. The unexplained delay of two years in completing the investigation is fatal to the prosecution case, especially in view of Section 50 of the Abkari Act. 6. Though it is true that the scope of interference by this court Crl.R.P.No.2796 of 2010 4 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 consider the contentions raised by the learned counsel for the revision petitioner. It is contended that in Ext.P2 mahazar no specimen seal is seen affixed nor the description of the nature of the seal affixed in the samples is not mentioned therein. 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. 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 Crl.R.P.No.2796 of 2010 5 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 **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** and 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 Crl.R.P.No.2796 of 2010 6 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 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. 8. The next contention raised by the learned counsel for the petitioner is that a perusal of Ext.P7 chemical analysis report would show that the sample was sent from the court vide covering letter No.PR3-536 of 2000 dated 07.12.2000 through an Excise Guard Govindan, the same reached the chemical analysis laboratory only on 05.01.2001, ie. about one month after the same has been sent from the court. The said unexplained delay is fatal to the case of the prosecution especially when the Thondy Clerk or the Excise Guard through whom the sample was sent to the chemical analysis laboratory is not examined. 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. This court in **Viayan** case cited supra has held that the thondy clerk must be examined to prove Crl.R.P.No.2796 of 2010 7 that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. The same has not been done in the present case. 9. The next contention raised is regarding the inordinate unexplained delay in completing the investigation. The occurrence was on 06.12.2000 and the chemical analysis report was ready on 06.11.2001, still, the complaint was filed only on 25.03.2002, ie. there is a delay of four months even after receipt of the chemical analysis report in filing the complaint. The unexplained delay of two years in completing the investigation is fatal to the prosecution case, especially in view of Section 50 of the Abkari Act. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. 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, Kumaran v. State of Kerala, 2016 (4) KLT 718**_ and the decision in **Moothedath 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_ Crl.R.P.No.2796 of 2010 8 _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 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 **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in_ Crl.R.P.No.2796 of 2010 9 _conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ 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 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 levelled against him. The bail bond shall stand cancelled and he is set at liberty forthwith. Crl.R.P.No.2796 of 2010 10 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** cks