Uthaman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** **Crl.Rev.Pet.No.2126 OF 2011** **AGAINST THE JUDGMENT IN CRA 121/2010 OF THE COURT OF ADDITIONAL SESSIONS JUDGE (FAST TRACK)-II, ALAPPUZHA** **AGAINST THE JUDGMENT IN SC 63/2008 OF THE COURT OF ASSISTANT SESSIONS JUDGE, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED NO.2:** **UTHAMAN AGED 56 YEARS, S/O.BHASKARAN,THAMALLAKKAL VADAKKUM MURI,, KUMARAPURAM VILLAGE,KARTHIKAPPALLY TALUK,, ALAPPUZHA.** **BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **SRI SANTHOSH PETER-SR PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** ## **Crl. R.P No. 2126 of 2011** 2 ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.2126 of 2011 --------------------------------------------** Dated this the 3[rd ] day of August, 2020 ## **O R D E R** The revision petitioner is the second accused in the case S.C No. 63/2008 on the file of the Court of the Assistant Sessions Judge, Alappuzha. 2. On 02.08.2005, the Excise Inspector (PW4) of the Karthikappally Excise Range was conducting patrol duty with excise party. At about 20:00 hours, when the excise party reached the road near K.V.Jetty Junction in Kumarapuram Village, they saw the motor cycle KL-46-5757 proceeding in front of them. While the excise jeep was overtaking the motor cycle, the excise party noticed that the pillion rider of the motor cycle was carrying a can with him. The excise party stopped the motor cycle. PW4 examined the can which was held by the pillion rider of the motor cycle and it was found that it contained 10 litres of arrack. PW4 arrested the rider and the pillion rider of the motor cycle and seized the can containing the arrack. The first accused was the rider of the motor cycle and the second accused was the pillion rider. This, in short, is the prosecution case. 3. Even before the committal of the case to the Court of ## **Crl. R.P No. 2126 of 2011** 3 Session, the first accused had died. Only the second accused faced the trial. He pleaded not guilty to the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P12 documents and MO1 material object. DW1 was examined on the side of the petitioner/second accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.121/2010 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 findings of guilty, conviction and sentence made against him by the courts below, the second accused has filed this revision petition. 8. Heard learned counsel for the petitioner and also the ## **Crl. R.P No. 2126 of 2011** 4 learned Public Prosecutor. Perused the records. 9. PW4 Excise Inspector has given evidence regarding the occurrence in detail. PW1 is the Excise Guard who was in the excise party led by PW4. His evidence corroborates the testimony of PW4 with regard to the material particulars of the occurrence. 10. PW2 and PW3 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. But they admitted their signature in Ext.P1 seizure mahazar. 11. Ext.P12 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of the liquid contained 37.03% by volume of ethyl alcohol. 12. Learned counsel for the petitioner contended that there is no reliable evidence to find that the sample of liquid allegedly drawn by PW4 at the spot of the occurrence was the sample which was forwarded for analysis and that Ext.P12 chemical examination report relates to the very same sample. 13. After perusing the evidence adduced by the prosecution and also the judgments of the courts below, I find that there is merit in the contention raised by the learned counsel for the petitioner and that the conviction entered against the petitioner cannot be sustained. The ## **Crl. R.P No. 2126 of 2011** 5 reasons are as follows. 14. PW4 Excise Inspector has given evidence that he took sample of the liquid from the can found in the possession of the petitioner and that he sealed the sample bottle and affixed label on it. Ext.P1 seizure mahazar, the contemporaneous document prepared by PW4, also contains a recital that the sample bottle and the can containing the residue were sealed at the spot of the occurrence. 15. PW4 has given evidence that, on returning to the Excise Range Office, he prepared Ext.P10 crime and occurrence report. He has also given evidence that he produced the sample and the can containing the residue before the court as per Ext.P11 property list. 16. The description of the bottle containing the sample and the can containing the residue given in Ext.P10 report does not show that there was any seal or label on them. At the same time, the description of the bottle containing the sample and the can given in Ext.P11 property list would show that the sample bottle and the can were sealed and labelled when they were produced before the court. This indicates that the seal was affixed on the sample bottle and the can not at the spot of the occurrence but at the Excise Range Office before producing them in the court. It creates suspicion as to whether sample of the liquid from the can allegedly seized from the possession of the ## **Crl. R.P No. 2126 of 2011** 6 petitioner was drawn at the spot of the occurrence itself. 17. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating officer for sending the sample for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. 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 allegedly taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 18. PW4 has not given any evidence with regard to the nature of the seal used by him for sealing the bottle containing the sample. The specimen of the seal used by him is also not seen affixed on Ext.P1 seizure mahazar. The forwarding note is also not marked. In such circumstances, there is no evidence as to the seal used by PW4 for sealing the sample bottle and also regarding the specimen of the seal which was provided in the forwarding note. Therefore, there is no assurance that the very same sample allegedly drawn by PW4 at the ## **Crl. R.P No. 2126 of 2011** 7 spot of the occurrence was produced before the court and the very same sample was sent for analysis. It further follows that, there is also no assurance that Ext.P12 chemical examination report relates to the very same sample allegedly drawn by PW4 at the spot of the occurrence. 19. Mere production of a laboratory report that the sample tested was contraband liquor cannot be conclusive proof 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. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the **Crl. R.P No. 2126 of 2011** 8 possession of the accused. 21. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects in appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner by the trial court cannot be sustained. 22. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner by the trial court under Section 8(1) read with 8(2) of the Abkari Act, which stands confirmed by the appellate court, is set aside. The petitioner 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. **Sd/R. NARAYANA PISHARADI JUDGE** **lsn**