Surendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942** **Crl.Rev.Pet.No.3850 OF 2009** **AGAINST THE JUDGMENT IN CRA 582/2008 DATED 26-08-2009 OF SESSIONS COURT, ALAPPUZHA** **AGAINST THE JUDGMENT IN SC 160/2006 DATED 07-11-2008 OF ASSISTANT SESSIONS COURT,ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SURENDRAN, AGED 46 YEARS, S/O.NANU SUDHI BHAVANAM, MUTHUKULAM THEKKU, MUTHUKULAM VILLAGE, KARTHIKAPPALLY TALUK.** **BY ADV.SRI.S.SHANAVAS KHAN** ## **RESPONDENT/STATE:** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR SRI.SANTHOSH PTER** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.08.2020, THE COURT ON 13.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.3850/2009 2 ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.3850 of 2009** **--------------------------------------------** Dated this the 13[th] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C. No. 160/2006 on the file of the Court of the Assistant Sessions Judge, Alappuzha. 2. The prosecution case is that, on 10.07.2003, at about 12:45 hours, at the road in front of Gurumandiram at the place Muthukulam, PW1 Preventive Officer found the petitioner/accused in possession of a can containing two litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. Crl.R.P.No.3850/2009 3 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P8 documents and MO1 material object. DW1 was examined on the side of the accused. 5. The trial court found the petitioner/accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. Aggrieved by the order of conviction and sentence made against him by the trial court, the accused filed Crl.A.No.582/2008 before the Court of Session, Alappuzha. The appellate court confirmed the conviction against the accused but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to simple imprisonment for a period of one month. 7. Aggrieved by the concurrent verdicts of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has Crl.R.P.No.3850/2009 4 filed this revision petition. 8. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. PW1 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is another Preventive Officer who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P8 is the chemical examination report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 33.85% by volume of ethyl alcohol. 12. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is totally insufficient to prove that the liquid allegedly seized from the possession of the petitioner was liquor and also to prove that Ext.P8 chemical Crl.R.P.No.3850/2009 5 examination report relates to the sample allegedly taken by PW1 at the spot of the occurrence. 13. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find that there is merit in the contention of the learned counsel for the petitioner and that the conviction entered against the petitioner cannot be sustained. The reasons are as follows. 14. PW1 has given evidence that he seized a can containing two litres of arrack from the possession of the accused and that he took sample of the liquid from the can in a bottle and that he affixed seal on the sample bottle and affixed label on it. He has also given evidence that he produced the articles seized by him before the Excise Inspector (PW5). 15. PW1 has stated on cross-examination that it was his personal seal bearing the letters “K.S” which was affixed on the sample bottle. This fact is not mentioned in Ext.P3 seizure mahazar. It is not even stated in Ext.P3 mahazar that it was the personal seal of PW1 that was affixed on the sample bottle. The specimen impression of the seal is also not seen affixed on Crl.R.P.No.3850/2009 6 Ext.P3 mahazar. 16. PW5 Excise Inspector has given evidence that the articles were produced before him by PW1 and that he registered Ext.P6 crime and occurrence report. The description of the bottle containing the sample given in Ext.P6 report does not show that the sample bottle was sealed or that there was any seal on it. Ext.P7 is the property list prepared by PW5 for producing the material objects before the court. The description of the properties given in Ext.P7 property list would show that the can and the bottle containing the sample were in a sealed condition. This indicates that there was no seal on the sample bottle when it was produced by PW1 in the Excise Range Office before PW5 but the seal on the sample bottle was affixed at the Excise Range Office before it was produced before the court as per Ext.P7 property list. 17. PW5 Excise Inspector who registered Ext.P6 crime and occurrence report or PW6 Excise Inspector who conducted the investigation has not given evidence that any requisition or forwarding note was prepared and submitted to the court for Crl.R.P.No.3850/2009 7 forwarding the sample for analysis. The forwarding note, which should have been prepared by PW5 or PW6 for sending the sample for analysis, was not marked in evidence. 18. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). Absence of the forwarding note in evidence means absence of evidence connecting the sample of the liquid allegedly seized from the possession of the accused and the sample that tested in the laboratory. 19. In the aforesaid circumstances, there is no assurance that the very same sample allegedly taken by PW1 at the spot of Crl.R.P.No.3850/2009 8 the occurrence was produced before the court and the very same sample was forwarded for analysis. It follows that there is also no assurance that Ext.P8 chemical analysis report relates to the very same sample allegedly drawn by PW1 at the spot of the occurrence. 20. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The samples seized and that tested have to be corelated (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569)** . 21. The above mentioned vital aspects have not been properly taken into consideration by the courts below while appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner/accused cannot be sustained. 22. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused, under Section 8(1) read with 8(2) of the Abkari Act, are set aside. The petitioner/ accused is found not guilty of the aforesaid offence Crl.R.P.No.3850/2009 9 and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R. NARAYANA PISHARADI JUDGE** **lsn** **True copy** **P S to Judge**