Vasudevan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 CRL.REV.PET NO. 348 OF 2007** **AGAINST THE ORDER/JUDGMENT CRA 144/2000 OF ADDITIONAL DISTRICT COURT (ADHOC), THIRUVANANTHAPURAM ST 4799/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** VASUDEVAN, S/O CHANDRAHASAN, RESIDING AT KUNNUMPURATHU VEEDU,, ALUKADU, POONTHURA WARD, MUTTATHARA VILLAGE. BY ADVS. SRI.R.BINDUSASTHAMANGALAM SRI.PRASANTH M.P ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP – SRI. RENJIT GEORGE **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.348 of 2007 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.348 of 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of September, 2023 ## **ORDER** The revision petitioner is arrayed as an accused in S.T.No.4799/1996 on the files of the Judicial First Class Magistrate-II, Thiruvananthapuram alleging commission of the offence punishable under Section 58 of the Kerala Abkari Act. 2. The prosecution case in brief is that, on 05.08.1996 at about 10 a.m., the revision petitioner/accused was found in possession of 5 litres of illicit arrack kept in a cannas near a temple at Muttathara village. 3. The prosecution in support of their case examined PWs 1 to 5 and Exts.P1 to P3 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 Rs.15,000/- and in default of the payment of the fine amount, to undergo simple imprisonment for three months. 4. Aggrieved by the conviction and sentence imposed by the trial Court, :3: CRL. R.P. No.348 of 2007 an appeal was preferred as Crl.Appeal No.144 of 2000 before the Additional Sessions Court, Thiruvananthapuram, 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: The primary contention raised is that no arrest memo or intimation is produced and marked. Secondly, it is contended that in Ext.P2 seizure mahazar only the seizure is mentioned and nothing is stated regarding taking of sample, affixing seal etc. In Ext.P2, no specimen seal is seen affixed. It is the further contention of the revision petitioner that no forwarding note has been produced and marked in trial. On these grounds, the learned Counsel for the petitioner would submit that the prosecution could not prove the case beyond reasonable doubt and the revision petitioner is entitled for an acquittal. 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**_ CRL. R.P. No.348 of 2007 :4: _**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 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. Let me first consider the contention raised by the counsel for the revision petitioner that no arrest memo or intimation is produced. The Apex Court in _**D.K.Basu v. State of West Bengal [(1997) 1 SCC 416],**_ has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time and date of arrest. This court in _**Baburaj**_ ’s case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore the noncompliance of mandatory CRL. R.P. No.348 of 2007 :5: requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this Court in _**Ramankutty v. Excise Inspector, Chelannur Range[2013 (3) KLT SN 83]**_ which held that noncompliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. This Court in _**Rafeeque v. Sub Inspector of Police[2020 (4) KLT 188]**_ has held that when the signature of the accused is not there in the arrest memo, the same is also fatal to the prosecution case. A similar view was taken by this Court in _**Udayan v. State of Kerala[2023 (1) KLT 371]**_ . Therefore, the noncompliance of this mandatory requirement makes the prosecution case doubtful. 8. Further it is contended that in Ext.P2 seizure mahazar only the seizure is mentioned and nothing is stated regarding taking of sample, affixing seal etc. In Ext.P2, no specimen seal is seen affixed and that no forwarding note has been produced and marked in the trial. 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 CRL. R.P. No.348 of 2007 :6: 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 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 CRL. R.P. No.348 of 2007 :7: 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].**_ 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 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 CRL. R.P. No.348 of 2007 :8: 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 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. 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. 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 CRL. R.P. No.348 of 2007 **==> picture [14 x 9] intentionally omitted <==** 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/