# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
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THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945
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CRL.REV.PET NO. 2534 OF 2010
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AGAINST THE ORDER/JUDGMENT IN CRA 97/2010 OF ADDITIONAL SESSIONS
COURT (ADHOC-I), THODUPUZHA
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AGAINST THE ORDER/JUDGMENT IN SC 351/2007 OF ASSISTANT SESSIONS
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## **`COURT,KATTAPPANA`**
## **`REVISION PETITIONER/APPELLANT/ACCUSED:`**
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TOMY, S/O.JOSEPH
MATTAPPALLIL HOUSE,
MAVADI KARA, PARATHODU VILLAGE.
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BY ADVS.
SRI.C.M.TOMY
SRI.K.J.JOSEMON
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## **`RESPONDENT/RESPONDENT/COMPLAINANT:`**
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STATE OF KERALA
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REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
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## **`OTHER PRESENT:`**
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SHRI RENJIT GEORGE- SR.P.P.
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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CRL.REV.PET NO. 2534 OF 2010
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## **ORDER**
This revision is at the instance of the accused in S.C. No.351 of 2007 on the file of Assistant Sessions Judge, Kattappana assailing the judgment in Crl.Appeal No.97 of 2010 on the file of III[rd] Additional District and Sessions Judge (Adhoc-I), Thodupuzha, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act.
2. The prosecution case is that, on 24.10.2003 at 6.45 p.m., while PW5-the Excise Inspector attached to Excise Enforcement and Anti Narcotic Special Squad, Idukki and party were conducting abkari raid at Parathodu bhagom in Udumbanchola Village, they found the revision petitioner possessing 1.850 litres of illicit arrack in two bottles, covered in a plastic cover. The revision petitioner was arrested and the contraband was seized.
3. After completing the legal formalities, the revision petitioner along with the articles seized were
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produced before the Excise Inspector. PW1-Excise Inspector registered the crime and PW4 investigated the case and laid charge sheet against the revision petitioner.
4. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined, Exts.P1 to P6 were marked and MOs.1 to 3 were identified from the side of prosecution, to prove its case.
5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and DW1 was examined as defence witness.
6. On hearing the rival contentions from either side and on analysing 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
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to undergo simple imprisonment for a period of six months and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of one month.
7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.97 of 2010. The appellate court, on reappreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision petition.
8. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent judgments of conviction and sentence by the courts below.
9. Heard learned counsel for the revision petitioner and learned Public Prosecutor.
10. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out some material defects, which, according to him, are sufficient to
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vitiate the trial. First of all, he would say that, there was no specimen impression of the seal in Ext.P1 seizure mahazar. The seizure mahazar is the document prepared at the scene of occurrence, immediately on seizure of the contraband. Simultaneously, the sample will be taken from the contraband, and it will be sealed. The sample seal in the seizure mahazar must be the seal used for sealing the sample bottle also. The seal in the sample bottle should be intact, till it reaches the hands of the chemical examiner. When the seal in the sample bottle tallies with the seal in the seizure mahazar also, it guarantees that the sample was sealed at the place of occurrence itself. When there is no seal in the seizure mahazar, even if the chemical examiner reports that, the seal on the sample bottles was intact and found tallied with the sample seal provided, no sanctity could be attached to that statement. In the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its
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authenticity. If there is no seal in the seizure mahazar, it will be 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. In the seizure mahazar, the nature of the seal used also should have been mentioned, and the detecting officer, who had drawn the sample, was bound to give evidence as to the nature of the seal affixed on the bottle containing the sample [See **Moothedath Sivadasan v. State of Kerala** 2021 (1) KLT 744 : 2021 KHC 3232 and **Bhaskaran v. State of Kerala** 2020 KHC 5296 : 2020 (5) KLT online 1057].
11. In the case on hand, the seizure mahazar does not bear specimen impression of the seal or any description as to the nature of the seal used. The detecting officer did not give evidence as to the nature of the seal used in the sample bottle, and no explanation, whatsoever has been offered for not affixing the specimen impression of the seal
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in the seizure mahazar. So, prosecution failed to establish the link evidence that, the sample which was taken from the contraband seized from the revision petitioner at the scene of occurrence, was the sample which reached the hands of the chemical examiner for analysis. So, a genuine doubt is created regarding tamper proof despatch of the sample, and the revision petitioner is entitled to get the benefit of that doubt.
12. The occurrence was on 24.10.2003. PW1-the Excise Inspector, who registered the crime, deposed that, his statement was taken on 18.03.2007 i.e., after a long delay of more than three years. No reason whatsoever has been offered by prosecution, for the delay in investigation. The final report was laid before the jurisdictional Magistrate court only on 19.04.2007. Ext.P6-chemical analysis report was issued on 16.05.2005. The final report was filed after about two years of receiving the chemical analysis report. The long delay in investigation and also in filing the final
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report is not explained by the prosecution.
13. In **Kumaran v. State of Kerala** [2016 (4) KLT 718], this Court reiterated the necessity to complete the investigation and to file the final report without delay, and if there is delay, prosecution is bound to explain it satisfactorily, or else, the benefit of that doubt will go to the revision petitioner.
14. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. So, the delay in conducting the investigation and filing the final report is fatal to the prosecution case and it will cause genuine doubt regarding the veracity of the prosecution case [See **Chandran vs. State** MANU/KE/2035/2016 : 2016 (5) KHC 650 and **Moothedath Sivadasan v. State of Kerala** 2021 (1) KLT 744].
15. Ext.P6-chemical analysis report shows that, the sample was sent from the Magistrate court on 27.10.2003,
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and it reached the lab only on 28.10.2003, with a delay of one day. Even though the delay was only one day, the prosecution was bound to explain that delay also. The sample bottles were sent to the lab through Excise Guard, Sri.V.K Baijumon as seen from the chemical analysis report. That name will not find a place in Ext.P3 forwarding note. That Excise Guard was not examined by the prosecution to explain the delay in reaching the sample before the chemical examiner’s lab. So, that delay also becomes fatal to the prosecution case.
16. The reasons aforementioned are sufficient to create a doubt regarding the genuineness of the prosecution case, and so, it has to be held that, the prosecution failed to prove its case beyond reasonable doubt. The conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court, without noticing these vital aspects, are liable to be set aside.
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17. In the result, the impugned judgments are hereby set aside. The revision petitioner is found not guilty of the offences alleged under Sections 8(1) and 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith.
The revision petition accordingly stands allowed.
**Sd/-**
**SOPHY THOMAS JUDGE**
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