Suresh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** **Crl.Rev.Pet.No.929 OF 2011** **AGAINST THE JUDGMENT IN CRA 443/2009 DATED 31-01-2011 OF ADDITIONAL SESSIONS FAST TRACK COURT , ALAPPUZHA** **AGAINST THE JUDGMENT IN SC 103/2008 DATED 23-09-2009 OF ASSISTANT SESSIONS COURT,ALAPPUZHA** ## **PETITIONER/APPELLANT/ACCUSED:** **SURESH** **S/O SUKUMARAN, NALPATHANCHIL VEEDU, MITHRAKARI MURI, MUTTAR VILLAGE, KUTTANAD.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.M.SUNILKUMAR** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.07.2020, THE COURT ON 04.08.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.929 OF 2011** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.929 of 2011 ---------------------------------------------Dated this the 4[th] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.103/2008 on the file of the Court of the Assistant Sessions Judge, Alappuzha. 2. The prosecution case is that, on 26.09.2004, at about 19:30 hours, at the road in front of the house of one Sukumaran in Ward No.9 of Muttar Panchayat, PW1 Excise Inspector found the petitioner/accused in possession of a plastic cover which contained a plastic bottle, having the capacity of 1.500 litres, full of spirit. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P9 documents and MO1 and MO2 material objects. DW1 was examined on the side of the accused. 5. The trial court found the accused guilty of the offence **Crl.Rev.Pet.No.929 OF 2011** **3** punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three months and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. 6. The petitioner filed Crl.A.No.443/2009 before the Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW1 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the 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 **Crl.Rev.Pet.No.929 OF 2011** **4** the prosecution. They did not support the prosecution case. They denied having seen the incident. They even denied the signature in Ext.P3 seizure mahazar. 11. Ext.P9 is the chemical examination report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 90.57% by volume of ethyl alcohol and that it was spirit. 12. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is not at all sufficient to prove that the very same sample allegedly drawn by the detecting officer at the spot of the occurrence was forwarded for analysis and that Ext.P9 chemical examination report relates to that sample. 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 the plastic bag found in the possession of the accused and then he saw a plastic bottle in it and that, by the taste and smell of the liquid contained in the bottle, he was satisfied that it was spirit. PW1 has also given **Crl.Rev.Pet.No.929 OF 2011** **5** evidence that he took sample of the liquid in another bottle and sealed the sample bottle and affixed label on it. He has further deposed that he produced the material objects before the court as per Ext.P5 property list and that he had also prepared and submitted forwarding note for sending the sample for analysis. 15. Ext.P6 is the copy of the forwarding note prepared by PW1 and submitted by him in the court for sending the sample for analysis. It bears a specimen impression of a seal. The appellate court has specifically found that the specimen of the seal provided in the forwarding note is that of the Magistrate's Court concerned. The specimen of the seal affixed on the sample bottle by PW1 was not produced before the court. The specimen of that seal is not affixed on the seizure mahazar. In such circumstances, the statement in Ext.P9 chemical examination report, that the seal on the sample bottle was intact and it tallied with the sample seal provided, is not sufficient to reach a conclusion that the very same sample drawn by PW1 at the spot of the occurrence was forwarded for analysis. Such an assurance would have been possible only if the specimen of the seal which was allegedly affixed by PW1 on the sample bottle was provided in the forwarding note. 16. In **Prakasan v. State of Kerala : 2016 (1) KLD 311** , this **Crl.Rev.Pet.No.929 OF 2011** **6** ## Court has held as follows: _“Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused”._ ## 17. In **Rajamma v. State of Kerala : 2014 (1) KLT 506** , it ## has been held as follows: _“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved_ **Crl.Rev.Pet.No.929 OF 2011** **7** _that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext. P3, it is certified that the seal of the sample bottle is intact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”._ 18. The decisions in **Prakasan** (supra) and **Rajamma** (supra) squarely apply to the facts of the present case. 19. Mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 20. The trial court as well as the appellate court has not considered, in the proper perspective, the effect of not providing the specimen impression of the seal in the forwarding note. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained in the light of the decisions of this Court in **Crl.Rev.Pet.No.929 OF 2011** **8** ## **Prakasan** (supra) and **Rajamma** (supra). 21. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence 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** jsr