Vaman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945** **CRL.REV.PET NO. 2390 OF 2010** **AGAINST THE ORDER/JUDGMENT CRA 601/2008 OF ADDITIONAL SESSIONS COURT (FAST TRACK-I), ALAPPUZHA SC 60/2008 OF PRINCIPAL SUB COURT / COMMERCIAL COURT,** ## **ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** VAMAN, AGED 53 YEARS, S/O.CHELLAPPAN, SATHYALAN VEEDU,, MAHADEVIKADU MURI, ARATTUPUZHA VILLAGE,, KARTHIKAPPALLY TALUK. BY ADVS. SRI.BASANT BALAJI SRI.R.GOPAN ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM. ## **OTHER PRESENT:** PP – SRI. RENJIT GEORGE **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.2390 of 2010 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.2390 of 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No. 60 of 2008 on the files of the Assistant Sessions Court, Alappuzha alleging commission of offences punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 08.07.2005 at about 12.10 pm, the revision petitioner/accused was found in possession of 2.5 litres of arrack in a jerry can in front of the grossery shop of one Thanakachan by CW1 and his Excise party, and thereby committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 4 and Exts P1 to P7 were marked and MO1 was identified. The trial Court found the accused guilty and convicted him to undergo simple imprisonment for a period of three months and to pay a fine of :3: CRL. R.P. No.2390 of 2010 Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.601 of 2008 before the Additional Sessions Judge, Fast Track Court-I, Alappuzha, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The learned counsel for the revision petitioner raised the following contentions. Though the occurrence was on 08.07.2005, the material objects were produced before the court only on 11.07.2005. The delay of three days in producing the same before the court, when not explained, is fatal to the case of the prosecution. PW1 in his examination also admits that material objects were produced before the court only on 11.07.2005 but no proper explanation is seen offered by PW1 for the delay in the production of the same. Yet another contention raised by the revision petitioner is that in Ext.P1 mahazar, no specimen seal is seen affixed nor the description of seal affixed on CRL. R.P. No.2390 of 2010 :4: the sample is seen mentioned therein. It is also contended that no forwarding note is seen marked in the present case. The learned counsel for the revision petitioner further contended that in Ext.P7 Chemical Analysis Report though the reference letter is mentioned, no date is seen stated therein. Therefore, in the absence of the production of the forwarding note, without examining the property clerk or the Excise Guard through whom the sample was sent for chemical examination, it cannot be conclusively said about the date on which the sample was sent from the court for the chemical examination. 6. 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 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 CRL. R.P. No.2390 of 2010 :5: 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. 7. The first contention raised is regarding the delay. Though the occurrence was on 08.07.2005, the material objects were produced before the court only on 11.07.2005. The delay of three days in producing the same before the court, when not explained, is fatal to the case of the prosecution. PW1 in his examination also admits that material objects were produced before the court only on 11.07.2005 but no proper explanation is seen offered by PW1 for the delay in the production of the same. This court in _**Ramachandran v. State of Kerala [2021 (1) KLT 793]**_ has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till CRL. R.P. No.2390 of 2010 :6: ## its production 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, 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.”_ CRL. R.P. No.2390 of 2010 :7: In view of the same, the delay of three days in producing the contraband before the court, which is not explained is fatal to the case of the prosecution. 8. Yet another contention raised by the revision petitioner is that in Ext.P1 mahazar, no specimen seal is seen affixed nor the description of seal affixed on the sample is seen mentioned therein. It is also contended that no forwarding note is seen marked in the present case. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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 CRL. R.P. No.2390 of 2010 :8: 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 the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. 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 (in the present case no forwarding note is produced and marked), 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 _**Gopalan v. State of Kerala [2016 (3) KLT SN 24], Prakasan v. State of Kerala [2016 (1) KLT SN 89 (C.No.96)],**_ and _**Ramachandran v. State of Kerala [2021 (1) KLT 739].**_ This court in _**Moothedath**_ CRL. R.P. No.2390 of 2010 :9: _**Sivadasan v. State of Kerala [2021 (1) KLT 744]**_ has held that since no specimen impression 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. This court in _**Sasidharan v. State of Kerala [2007 (1) KLT 720]**_ has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition. Relying on the judgment of the Apex Court in _**State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]**_ , this court in _**Sasidharn**_ ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The Apex Court in _**Vijay Pandey v. State of U.P., [AIR 2019 SC 3569]**_ has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested CRL. R.P. No.2390 of 2010 **==> picture [20 x 9] intentionally omitted <==** are to be correlated. A similar view was taken by this court in _**Udayan v. State of Kerala [2023 (1) KLT 371]**_ **.** 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. 9. It is further contended that in Ext.P7 Chemical Analysis Report though the reference letter is mentioned, no date is seen stated therein. Therefore, in the absence of the production of the forwarding note, without examining the property clerk or the Excise Guard through whom the sample was sent for chemical examination, it cannot be conclusively said about the date on which the sample was sent from the court for the chemical examination. I find considerable force in the argument of the counsel for the revision petitioner that without producing the forwarding note and without the date of forwarding letter in Ext P7 chemical analysis report, it cannot be conclusively said when the sample was sent to the court for chemical examination and also the safe custody of the same, which could be assured only by CRL. R.P. No.2390 of 2010 :11: examining the property clerk or the Excise Guard through whom the sample was sent for chemical examination. In view of the same, the said lacuna will go against the case of the prosecution. 10. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. 11. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. 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. Sd/- **VIJU ABRAHAM JUDGE** sm/