Thomas v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945** ## **CRL.REV.PET NO. 1000 OF 2012** **AGAINST THE JUDGMENT IN SC 12/2009 ON THE FILE OF THE ASSISTANT SESSIONS JUDGE, THODUPUZHA AND CONFIRMED IN CRA 3/2011 BY THE IIND ADDITIONAL SESSIONS COURT, THODUPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED NO.1:** THOMAS,AGED 40 YEARS S/O.ULAHANNAN, THERUVAKKATTIL HOUSE, KARIMKUNNAM P.O., KRIMKUNNAM VILLAGE, THODUPUZH TALUK, IDUKKI DISTRICT. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN ## **RESPONDENT/RESPONDENT/COMPLAINANT/STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.8/06 OF EXCISE RANGE OFFICE, THODUPUZHA). PP- RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.R.P.No.1000 of 2012 2** ## **VIJU ABRAHAM,J** **----------------------Crl.R.P.No.1000 of 2012 ------------------------------------Dated this the 16[th] day of October, 2023** ## **ORDER** The revision petitioner is the accused in S.C. No.12 of 2009 on the file of the Assistant Sessions Judge, Thodupuzha alleging commission of offence punishable under Sections 55(h) and 58 of the Abkari Act. 2. The prosecution case is that on 01.08.2006 at about 11.00 a.m. the accused persons were found in possession of illicit liquor in 21 bottles of 180 ml capacity and 4 litres of illicit liquor in a bucket in room No.VII/309 of Karimkunnam Panchayath. The accused persons were keeping the illicit liquor for the purpose of bottling and empty bottles were also recovered from the room. The accused persons are thereby alleged to have committed the offence as aforesaid. 3. On the side of the prosecution PWs.1 to 8 were examined and Exts.P1 to P17 were marked and Mos.1 to 4 were identified. ## **Crl.R.P.No.1000 of 2012 3** 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. 5. An appeal preferred by the revision petitioner as Crl. Appeal No.3 of 2011 was also dismissed by the appellate court confirming the conviction and sentence imposed by the trial court. Aggrieved by the said conviction and sentence, this Crl.Revision Petition is filed. 6. The learned counsel for the revision petitioner raised the following contentions: Though the occurrence was on 1.8.2006, a perusal of Ext.P6 property list would show that the contraband was produced before the court only on the next day, i.e., 2.8.2006, and there is an unexplained delay in producing the same before the court. Petitioner further submits that in Ext.P3 ## **Crl.R.P.No.1000 of 2012 4** seizure mahazar no specimen seal is seen affixed or the nature of the seal affixed on the sample is not mentioned therein but the learned public prosecutor would submit that the specimen seal is affixed in Ext P6 property list. Petitioner also would further submit that there is a delay in completing the investigation, which is also fatal to the case of the prosecution. Petitioner submits that the occurrence was on 1.8.2006 and though the chemical analysis report was ready on 17.2.2007, the final report was filed only on 4.11.2008. It is further contended that in Ext.P7 forwarding note, the name of the guard through whom the alleged contraband was sent to the chemical laboratory is not mentioned. 7. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that ## **Crl.R.P.No.1000 of 2012 5** given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 8. The first contention of the learned counsel for the revision petitioner is that though the occurrence was on 1.8.2006, a perusal of Ext.P6 property list would show that the contraband was produced before the court only on 2.8.2006, and there is an unexplained delay in producing the same before the court. In **Chandran @** **Chandrashekaharan v. State (2016 (5) KHC 650)** this court has held in paragraph 11 as follows: _“11. It is also to be noted that even though the contraband article was seized on 7.1.2006,_ ## **Crl.R.P.No.1000 of 2012 6** _the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is only for one day, particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence regarding the safe custody of the sample till its production before the court.”_ The petitioner also relies on the judgment in _**Chandran v. State of Kerala (ILR 2022 (2) Ker. 807)**_ . Paragraph 12 of the judgment which reads as follows: _“12. Coming to the facts of the case, the detection was on 2.2.1998. The accused were arrested on the spot. They were produced at the Court on 3.2.1998. PW1 entrusted the seized contraband substance as well as the sample bottle to PW4 on 2.2.1998. Still, they were produced only_ ## **Crl.R.P.No.1000 of 2012 7** _on 4.2.1998 at the Court. Thus, there was two days' delay. This has not been explained at all. There was absolutely no evidence to show as to how and in what condition the contraband articles were kept. When there is delay, however short it may be, 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 failed to satisfy this twin conditions.”_ Since the delay as well as the safe custody of the seized contraband till the same is produced before the court was not explained, the same is fatal to the case of the prosecution. 9. Petitioner further submits that in Ext.P3 seizure mahazar no specimen seal is seen affixed or the nature of the seal affixed on the sample is not mentioned therein. Even though the learned public prosecutor submits that in Ext P6 property list, specimen seal is affixed but it is admitted that no specimen seal is affixed on seizure mahazar. The purpose of putting the specimen seal impression in the seizure mahazar is to give an ## **Crl.R.P.No.1000 of 2012 8** opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. This court in **Vijayan v. State of Kerala, 2021 (5) KLT 321,** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In **Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 1030** , it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note, there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in **Moothedath Sivadasan v. State of Kerala, 2021 (1)** **KLT 744** and held that since no specimen impression ## **Crl.R.P.No.1000 of 2012 9** of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. Therefore, the non affixture of specimen seal in the seizure mahazar which contains the details of seizure and taking sample at the spot is mandatory and the affixture of seal in Ext P6 alone is not sufficient. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. 10. Yet another contention raised is that in Ext.P7 forwarding note, the name of the guard through whom the alleged contraband was sent to the chemical laboratory is not mentioned. This court in **Kumaran v. State of Kerala, 2016 (4) KLT** **718** , paragraph 7 of the order reads as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner,_ ## **Crl.R.P.No.1000 of 2012 10** _which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither_ ## **Crl.R.P.No.1000 of 2012 11** _the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ In the said circumstance, it is incumbent on the part of the prosecution to have examined the thondi clerk or the excise guard through whom the sample was sent to the laboratory for examination so as to prove the tamper-proof despatch of the sample to the laboratory and having failed to do so, the benefit of doubt should go in favour of the revision petitioner. 11. Petitioner also would further submit that there is a delay in completing the investigation, which is also fatal to the case of the prosecution. Petitioner submits that the occurrence was on 1.8.2006 and though the chemical analysis report was ready on 17.2.2007, the final **Crl.R.P.No.1000 of 2012 12** report was filed only on 4.11.2008. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** , _**Surendran and Another v. State of Kerala**_ _**2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4)**_ _**KLT 718**_ and the decision in **Moothedath Sivadasan v.** **State of Kerala, 2021 (1) KLT 744** in support of his contentions. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was_ ## **Crl.R.P.No.1000 of 2012 13** _unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” In **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was_ ## **Crl.R.P.No.1000 of 2012 14** _inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In **Moothedath Sivadasan's** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. 12. The above vital aspects were not ## **Crl.R.P.No.1000 of 2012 15** considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the courts below cannot be sustained. In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and he is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this Court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **==> picture [35 x 9] intentionally omitted <==** **VIJU ABRAHAM, JUDGE** pm