SURESH v. STATE OF KEARALA

``` CRL.RP NO.1995/2010 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943 CRL.REV.PET NO. 1995 OF 2010 ``` ``` AGAINST THE JUDGMENT IN CRL.A NO. 112/2009 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.I, ALAPPUZHA AGAINST THE JUDGMENT IN SC 777/2005 OF THE ASSISTANT SESSIONS ``` ## **`JUDGE, ALAPPUZHA`** ## **`REVISION PETITIONER/2ND APPELLANT:`** ``` SURESH, AGED 31 YEARS, S/O.SUKUMARAN, PUTHENCHIRA VEEDU,KAROOR MURI, WARD NO.2, PURAKKAD PANCHAYATH,PURAKKAD VILLAGE. ``` ``` BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KEARALA REP. BY THE SUB INSPECTOR OF POLICE, AMBALAPUZHA,THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` SRI SANAL P RAJ,PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.RP NO.1995/2010 ``` ``` 2 ``` ## **`O R D E R`** This Criminal Revision Petition is directed against the judgment dated 4.3.2010 in Crl.A No.112/2009 on the file of the Additional Sessions Court, Fast Track Court I, Alappuzha (for short ‘the appellate court), confirming the judgment dated 29.1.2009 in S.C.No.777/2005 on the file of the Assistant Sessions Judge, Alappuzha (for short ‘the trial court’). 2. The revision petitioner/2[nd] accused faced trial for an offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case in short is that on 24.7.2003 at about 7.30 pm the accused were found in possession of 400 ml of arrack for sale in the varanda of the shop room of one Kolappally Vijayan in Karoor muri of Purakkad Panchayat in contravention of the Abkari Act and Rules. 4. On receipt of summons, the accused appeared at the court below. After hearing both sides, the charge under Section 55(a) of the Abkari Act was framed against the accused. The ``` CRL.RP NO.1995/2010 ``` ``` 3 ``` charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 4 and marked Exts.P1 to P10. MO1 was identified. 6. Considering the evidence on record, the trial court found both the accused guilty for the offence punishable under Section 8(1) and (2) of the Abkari Act and they were convicted for the said offence. The accused were sentenced to undergo simple imprisonment for a period of three months each and to pay a fine of Rs.1,00,000/- each, in default to suffer simple imprisonment for a period of two months each. Both the accused preferred appeal against the judgment of conviction and sentence passed by the trial court as Crl.A No.112/2009. In appeal, the appellate court set aside the conviction and sentence against the 1[st] accused and he was acquitted and confirmed the conviction and sentence passed against the 2[nd] accused. Challenging the conviction and sentence passed by the courts below, the 2[nd] accused preferred this revision. 7. I have heard Sri.Sunil Kumar A.G, the learned counsel ``` CRL.RP NO.1995/20104 ``` for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor. 8. The learned counsel appearing for the revision petitioner assailed the impugned conviction and sentence passed against the accused mainly on three grounds. (i) The seizure mahazar does not contain the sample seal or the description of the seal used. (ii) No forwarding note has been produced or marked in evidence. (iii) There is undue delay in producing the seize contraband substance as well as the sample drawn from it at the court. 9. The first contention canvassed by the learned counsel for the revision petitioner is regarding the absence of 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.P7 mahazar would show that it does not contain ``` CRL.RP NO.1995/2010 ``` ``` 5 ``` the sample seal or the description of the seal used. 10. The next point canvassed by the learned counsel for the revision petitioner is regarding the non production of the forwarding note. A mere production of the laboratory report that the sample tested was contraband substance, is not sufficient unless and until the forwarding note also is produced. This Court in Gireesh @ Manoj v. State of Kerala [2019 KHC 655] has held that 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 occurrence had reached the chemical examiner for analysis in a tamper proof condition. 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. Hence, I am of the view that non production of the forwarding note is fatal to the prosecution. 11. The last point canvassed by the learned counsel ``` CRL.RP NO.1995/20106 ``` appearing for the revision petitioner is regarding the unexplained delay in producing the contraband article at the court. I find some force in the said argument. It is settled that the unexplained delay in producing the contraband substance and the samples drawn from it at the court is fatal to the prosecution case. The Apex Court in State of Uttar Pradesh v. Hansraj @ Hansu [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. A Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in Ramankutty v. Excise Inspector [2013 (3) KHC 308] has held that in the absence of proper ``` CRL.RP NO.1995/20107 ``` explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in Ravi v. State [2018 (4) KLT Online 2056]. Relying on the Division Bench's decision in Ravi (supra), recently, another Single Bench of this Court in Anilkumar v. State (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal. 12. Coming to the facts of the case the detection was on 24.7.2003. Ext.P9 would show that the seized contraband substance as well as the sample drawn from it were produced at the court only on 4.8.2003. Thus there is a delay of 10 days. There was absolutely no evidence to show as to how and in what condition the contraband articles were kept. When there is a delay in producing the seized contraband substance and the sample drawn from it at the court, the prosecution has not only to explain the delay satisfactorily but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution has failed to satisfy these twin conditions in this case. ``` CRL.RP NO.1995/20108 ``` In these circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the very same sample taken from the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. For these reasons, I hold that this is a fit case where the discretionary powers vested with this Court under Section 397 r/w 401 of Cr.P.C could be exercised. 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 offence charged against him and accordingly he is acquitted. His bail bond is cancelled. Sd/- ## D R. KAUSER EDAPPAGATH ## JUDGE ab