Sundaran v. State of Kerala

``` CRL.R.P NO. 1546 OF 2013 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 CRL.REV.PET NO. 1546 OF 2013 ``` ``` AGAINST THE JUDGMENT IN CRL.A 270/2007 OF ADDITIONAL SESSIONS COURT, THALASSERY ``` ``` AGAINST THE JUDGMENT IN S.C.NO.385/2002 OF THE ASSISTANT SESSIONS COURT, PAYYANNUR. ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SUNDARAN, AGED 51 YEARS, S/O.MALINKAN, RESIDING AT PILATHARA, CHERUTHAZHAM, KANNUR DISTRICT. ``` ``` BY ADV SRI.GEORGE MATHEWS ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA EXCISE RANGE OFFICER, PAPPNISSERY RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI SANAL P RAJ,PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.R.P NO. 1546 OF 2013 ``` ``` 2 ``` ## O R D E R This revision petition is directed against the judgment dated 27.2.2013 passed by the Additional Sessions Court, Thalassery (for short ‘the appellate court’) in Crl.A No.270/2007, confirming the judgment dated 31.5.2007 passed by the Assistant Sessions Court, Payyannur (for short ‘the trial court’) in S.C.No.385/2002. 2. The revision petitioner/accused faced trial for an offence punishable under Section 55(g) of the Abkari Act. 3. The prosecution case in short is that on 11.8.2000 at 7.30 am, the accused was found in possession of 20 litres of wash at his residential house bearing No.IV/222 of Cheruthazham Panchayat in contravention of the Abkari Act and the Rules and thereby committed the offence. 4. On receipt of summons, the accused appeared at the court below. After hearing both sides, charge was framed against the accused under Section 55(g) of the Abkari Act. The charge was read ``` CRL.R.P NO. 1546 OF 2013 ``` ``` 3 ``` over and explained to the accused who pleaded not guilty. 4. On the side of the prosecution PWs1 to 5 were examined and Exts.P1 to P10 were marked. MO1 was identified. No defence evidence was adduced. 5. Considering the evidence on record, the trial court found the accused guilty under Section 55(g) of the Abkari Act and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-, in default to suffer simple imprisonment for a period of six months. In appeal, the appellate court confirmed the conviction and sentence passed by the trial court. Challenging the conviction and sentence passed by both the courts below, the accused preferred this revision. 6. I have heard Sri.George Mathew, the learned counsel for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor. 7. The learned counsel appearing for the revision petitioner ``` CRL.R.P NO. 1546 OF 2013 ``` ``` 4 ``` impeached the findings of the courts below and the resultant finding as to the guild mainly on four grounds. (i) PW5, the investigating officer has no power and jurisdiction to conduct the investigation and as such the entire investigation and submission of the final report are vitiated. (ii) There is no evidence to show that the accused was in conscious possession of the seized contraband substance. (iii) The mahazar does not contain the sample seal or its description. (iv) The forwarding note does not contain the sample seal. 8. It is not in dispute that the incident took place within the jurisdiction of Pappinissery Excise Range. PW1, who was the Excise Inspector of Pappinissery Excise Range detected the offence. However, the investigation was conducted by PW5, the Excise Inspector of Excise Circle Office, Kannur. There is nothing on record to show that PW5 has jurisdiction to conduct investigation in respect of an Abkari offence within the jurisdiction of Pappinissery Excise Range. When PW5 was examined, his competency to conduct investigation in respect of an offence within the Pappinissery Excise ``` CRL.R.P NO. 1546 OF 2013 ``` ``` 5 ``` Range has not been explained. 9. The learned counsel for the revision petitioner next argued that only because of the fact that the building in question from where the contraband article was seized stood in his name, it cannot be presumed that he was in possession of the contraband article seized. The evidence on record would show that the contraband substance was seized from the kitchen of the house in question. It is true that the accused was present when the detection was made. Ext.P10 coupled with the evidence of PW4, the Secretary of Grama Panchayat, would prove that the accused was the owner of the building at the relevant time. A Single Bench of this Court in Ravi v. State of Kerala (2011(3) KHC 427) has held that only because an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have stored the article, nor can it be said that he is in possession of such article. It was further held that even if the owner or occupier of the house was present in the house at the time of seizure, he cannot be presumed ``` CRL.R.P NO. 1546 OF 2013 ``` ``` 6 ``` to be in possession of the article or stored the same. Apart from the fact that the building in question stood in the name of the accused and that he was present at the time of search and seizure, there is absolutely nothing to prove the conscious possession of the accused over the contraband article seized. 10. The third point canvassed by the learned counsel for the revision petitioner is regarding the absence of the seal in the mahazar. This Court in K . Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen seal shall be 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. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 mahazar would show that it does not contain the sample seal or the description of the seal used. 11. The last point canvassed by the learned counsel for the revision petitioner is regarding the absence of seal in the forwarding ``` CRL.R.P NO. 1546 OF 2013 ``` ``` 7 ``` note. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) has held that the forwarding note must contain the specimen of the seal affixed on the sample. The forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. In the absence of seal in the forwarding note, it cannot not be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. 12. The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the court below cannot be sustained. In the result, the Criminal Revision Petition stands allowed. The conviction and sentence passed by the courts below vide the impugned judgment are set aside. The revision petitioner is found not guilty of the ``` CRL.R.P NO. 1546 OF 20138 ``` offences charged against him and accordingly he is acquitted. His bail bond is cancelled. Sd/- DR. KAUSER EDAPPAGATH JUDGE ab