Syamkumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 CRL.REV.PET NO. 914 OF 2014`** ## **`- CRA 255/2013 OF ADDITIONAL DISTRICT & SESSIONS COURT II, PATHANAMTHITTA SC 11/2012 OF ASSISTANT SESSIONS JUDGE, PATHANAMTHITTA`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SYAMKUMAR AGED36YEARS S/O.RAJENDRAN,CHENNAMCHIRAVEEDU,NARANGANAM VILLAGE,KOZHENCHERRYTALUK,PATHANAMTHITTA DISTRICT. ``` ``` BYADVS. SRI.V.SETHUNATH SRI.S.JUSTUS ``` ## **`RESPONDENTS/RESPONDENT/COMPLAINANT:`** - `1 EXCISE INSPECTOR EXCISE RANGE,PATHANAMTHITTA-689645.` ``` 2STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR,HIGHCOURT OFKERALA-682031. ``` ## **`OTHER PRESENT:`** ``` SHRIRENJITGEORGE,SR.PUBLIC PROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARDON 08.11.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.R.P No.914 of 2014 2 ## **O R D E R** This revision is at the instance of the accused in SC No.11 of 2012 on the file of Assistant Sessions Judge, Pathanamthitta, assailing the judgment in Crl.Appeal No.255 of 2013 on the file of Additional District & Sessions Judge-II, Pathanamthitta, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 07.06.2007 at about 6 p.m, the revision petitioner was found carrying a can containing 5 litres of arrack at the footpath near house No.IX/352 at Naranganam village. PW4, the Excise Inspector, detected the offence. The revision petitioner was arrested then and there, and the contraband was seized, as per Ext.P1 seizure mahazar. After completing all the legal formalities of sampling, labelling etc., the revision petitioner along with the articles seized and the records prepared, were produced before the Excise Inspector and thereafter before the jurisdictional Magistrate. PW5 investigated the case and laid charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 3. On appearance of the revision petitioner on summons, the trial court framed charge under Sections 8(1) and 8(2) of the Abkari Act, to which, he pleaded not guilty and claimed to be tried. Crl.R.P No.914 of 2014 3 4. PWs 1 to 5 were examined, Exts.P1 to P8 were marked and M.O.1 was identified from the side of the prosecution, to prove its case. 5. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 Cr.P.C, and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 6. After hearing the rival contentions from either side and on evaluating the facts and evidence, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1 lakh. In default of payment of fine, he had to undergo rigorous imprisonment for a further period of one month. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.255 of 2013, and the appellate court, on re-appreciation of the facts and evidence, upheld the conviction and sentence and dismissed the appeal, against which he has preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence rendered by the trial court as well as the appellate court. 8. Heard learned counsel for the revision petitioner and Crl.R.P No.914 of 2014 4 learned Public Prosecutor. 9. PW4, the detecting officer, and PW2, the Excise Inspector who was accompanying PW4, deposed the case in tune with the prosecution. PW3, the Excise Inspector, registered the crime, prepared occurrence report, and produced the records, and the contraband seized, along with the revision petitioner before the jurisdictional Magistrate. PW1, the independent witness, turned hostile to the prosecution. 10. Learned counsel for the revision petitioner is assailing the judgments of the trial court as well as the appellate court mainly on technical grounds which, according to him, will vitiate the trial and conviction. According to him, the revision petitioner was not arrested by PW4 at Naranganam on 07.06.2007 at 6 p.m. In order to substantiate his argument, he pointed out that, in Ext.P6 arrest memo and Ext.P6(b) arrest notice, the place is mentioned as Pathanamthitta where the Excise Office is situated. According to him, if the revision petitioner was arrested at Naranganam, in the arrest memo as well as in the arrest notice, the place could not have been mentioned as Pathanamthitta. The revision petitioner, who was arrested on 07.06.2007, was produced before the Excise Inspector only on 08.06.2007. That delay is not explained. So, the arrest of the revision petitioner at the place of Crl.R.P No.914 of 2014 5 occurrence is doubtful and he is entitled to get benefit of that doubt. 11. In Ext.P1 seizure mahazar, there is no impression of the specimen seal. The seizure mahazar is a contemporary document along with the seizure of contraband, and the specimen seal affixed in the seizure mahazar will be there in the sample bottle as well as in the forwarding note, so as to ensure the identity of the sample, and transparency of the procedure. Prosecution has a duty to prove that the sample seized at the place of occurrence reaches the court, and later the chemical examiner’s lab. When there is no specimen impression of the seal in Ext.P1 seizure mahazar, it is a ground to doubt the genuineness of the sample which reached the chemical examiner’s lab, even if it bears a specimen seal. 12. **In Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** , this Court held that, when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult to hold that, the sample which reached the chemical examiner’s lab was the sample taken from the contraband allegedly seized from the possession of the accused. 13. Another contention of the learned counsel for the revision petitioner is that, in Ext.P4 forwarding note, the sample seal provided is that of JFCM, Pathanamthitta and not the sample seal Crl.R.P No.914 of 2014 6 provided in Ext.P7. In Ext.P8 chemical analysis report, the chemical examiner has stated that, the seal on the bottle was intact and found tallied with the sample seal provided. Ext.P7 sample seal was not the seal affixed on Ext.P4 forwarding note. So, we are not sure which was the sample seal affixed in the sample bottle, which the examiner has reported as ‘found tallied’. Obviously, the seal in the forwarding note was not the seal seen in Ext.P7 which was said to be affixed in the sample bottle. So, it is as good as not affixing specimen impression of the seal in the forwarding note. 14. In **Gireesh v. State of Kerala [2019 (4) KLT 79]** , this Court held, in paragraph 14, that, _the forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples._ 15. In the forwarding note, the name of the Excise Guard with whom the sample was entrusted for taking it to the chemical examiner’s lab will not find a place. 16. In **Kumaran P. v. State of Kerala and another [2016 (5) KHC 632 : 2016 (4) KLT 718]** , this Court held that ‘ _when the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, is remaining vacant in the forwarding note, the prosecution has to examine the thondy clerk_ Crl.R.P No.914 of 2014 7 _of the Court or Excise Guard concerned, to prove tamper proof despatch of the sample to the laboratory. Absence of such examination, enures to the benefit of the accused_ ’. Here no thondy clerk or Excise Guard was examined to prove tamper proof despatch of the sample. 17. In Ext.P8 chemical analysis report, it is mentioned that, the sample was sent to the lab from the court vide letter No.TR 245/07 dated 13.06.2007 through Excise Guard Appukuttan B. But, the sample reached the lab only on 16.06.2007. There occurred delay of three days in reaching the sample sent from the court to the chemical examiner’s lab, and that delay is not explained by the prosecution. When there is delay in reaching the sample before the chemical examiner, there is no assurance that the sample seized from the accused reached the hands of the chemical examiner, in a tamper proof manner. 18. In **Krishnadas v. State of Kerala [2019 KHC 191]** , this Court had occasion to consider the impact of delay in reaching the sample before the laboratory and it was held that, when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. 19. In the case on hand, we have found that the sample seal Crl.R.P No.914 of 2014 8 shown in Ext.P7 was the seal affixed in the sample bottle, but in the forwarding note, that sample seal is absent, and instead, sample seal of JFCM, Pathanamthitta is seen affixed. The absence of the very same specimen impression of the seal which was affixed in the sample bottle, in the forwarding note casts serious doubt regarding the genuineness of the sample which reached the lab, and the prosecution failed to show that the sample which was taken at the spot, reached the chemical examiner’s lab for analysis. 20. Learned counsel for the revision petitioner brought to the notice of this Court, the delay in conducting investigation and filing the final report. Though the occurrence was on 07.06.2007, the witnesses were seen questioned on 02.06.2009 i.e. after about two years. The final report was seen filed before court on 03.07.2009. But no proper explanation is forthcoming, which is fatal to the prosecution case. 21. In **Krishnan H v. State [2015 (1) KHC 822]** , this Court held that, in the absence of sufficient explanation, long delay in conducting investigation is fatal to the prosecution. Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay. In the case on hand, there occurred delay of two years in conducting the Crl.R.P No.914 of 2014 9 investigation and filing the final report. The prosecution has not offered any explanation for this inordinate delay in conducting the investigation. 22. The reasons aforementioned are sufficient to hold that the prosecution failed to prove its case beyond any shadow of doubt. The arrest itself is doubtful. Absence of specimen impression of the seal in the seizure mahazar, delay in producing the revision petitioner before the Excise Inspector, impression of a seal in the forwarding note other than the seal affixed in the sample bottle, delay in reaching the sample before the chemical examiner’s laboratory after forwarding it from court etc. etc. are material defects which will cut the root of the prosecution case. So, the conviction and sentence imposed by the trial court as well as the appellate court without noticing the material defects pointed out above, are liable to be set aside. In the result, this revision petition is allowed, setting aside the impugned judgments of conviction and sentence and the revision petitioner is found not guilty of the offence alleged and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. **Sd/-** **SOPHY THOMAS JUDGE** smp