Vazhayil Mani @ Viswanathan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 CRL.REV.PET NO. 2056 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 104/2007 OF ADDITIONAL DISTRICT COURT (ADHOC-I), MANJERI SC 308/2006 OF ASSISTANT SESSIONS COURT, MANJERI ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` VAZHAYIL MANI @ VISWANATHAN AGED 47 YEARS S/O.VELAYUDHAN, VARIATH VALAPPIL VAZHIKADAVU, AMSOM, KARAKKODE DESOM, MALAPPURAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL 108692 ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P., SRI. RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 2056 of 2008 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 2056 of 2008 ============================ Dated this the 5[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 308 of 2006 on the file of the Assistant Sessions Court, Manjeri alleging commission of offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution allegation in brief is that, on 17.12.2004 at about 6.30 pm, the accused was found transporting 10 litres of illicit arrack through a public road near Anappara in contravention of the provisions of the Kerala Abkari Act and thereby the accused has committed the alleged offence. 3. The prosecution in support of their case examined PWs 1 to 5 and Exts P1 to P7 were marked and MO1 was identified. On the side of defence, two witnesses were examined as DWs 1 and 2 and Ext D1 document was marked. The trial Court found the revision petitioner guilty and convicted thereunder and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Crl.R.P. No. 2056 of 2008 :3: 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 from 17.12.2004 to 08.01.2005. 4. Aggrieved by the judgment of conviction and sentence imposed by the trial Court, the revision petitioner preferred an appeal before the Sessions Court, Manjeri as Crl.Appeal No.104 of 2007, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. Challenging the conviction and sentence passed by the Court below, the learned Counsel for the revision petitioner raised the following contentions. The first contention raised by the petitioner is regarding the discrepancy in the evidence of PW1 and 2 regarding samples taken and Ext P7 chemical analysis report. The detection was on 17.12.2004. According to the mahazar, sample was taken on the spot. The learned Counsel for the revision petitioner would point out the discrepancy in the evidence of PWs 1 and 2 regarding the sample taken, whereas PW1 would depose that the sample was taken in a 375 ml bottle, whereas PW2 who was accompanying PW1 would depose that 200ml was taken as sample and was taken in a 375 ml bottle. A perusal of Ext P7 Crl.R.P. No. 2056 of 2008 :4: chemical analysis report would reveal that the sample taken was 375 ml in a 375 ml bottle. The same would reveal that the evidence of PW2 that 200ml was taken as sample cannot be believed in as much as the chemical analysis report would reveal that the sample taken at the spot was 375 ml of arrack. Yet another contention taken by the revision petitioner is that the occurrence was on 17.12.2004 whereas the complaint is filed only on 19.04.2006 in spite of the fact that the chemical analysis report was ready on 29.03.2005. The learned Counsel for the revision petitioner would submit that the delay is not explained. The learned Counsel for the revision petitioner would further submit that the detection had taken place after the introduction of Section 53 A in the statute book, regarding the disposal of the seized liquor, intoxicating drugs or articles. The learned Counsel for the revision petitioner would submit that no such steps are seen taken in this case and no document has been produced to substantiate the compliance of Section 53 A, which is fatal to the prosecution case. 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 Crl.R.P. No. 2056 of 2008 :5: 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 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 by the petitioner is regarding the discrepancy in the evidence of PW1 and 2 regarding samples taken and Ext P7 chemical analysis report. The detection was on 17.12.2004. According to the mahazar, sample was taken on the spot. The learned Counsel for the revision petitioner would point out the discrepancy in the evidence of PWs 1 and 2 regarding the sample taken, whereas PW1 would depose that the sample was taken in a 375 ml bottle, whereas PW2 who was accompanying PW1 would depose that 200ml was taken as sample and was taken in a 375 ml bottle. A perusal of Ext P7 chemical analysis report Crl.R.P. No. 2056 of 2008 :6: would reveal that the sample taken was 375 ml in a 375 ml bottle. The same would reveal that the evidence of PW2 that 200ml was taken as sample cannot be believed in as much as the chemical analysis report would reveal that the sample taken at the spot was 375 ml of arrack. In view of the above, it cannot be conclusively said that it is the sample which was taken at the time of seizure that has reached the chemical analysis laboratory and the said lacuna is fatal to the prosecution case. 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 Crl.R.P. No. 2056 of 2008 :7: 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. 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. 8. The next contention raised by the learned Counsel for the revision petitioner is that since the detection had taken place after the introduction of Section 53A in the statute book, regarding the disposal of the seized liquor, intoxicating drugs or articles, there should be strict compliance of the procedure enumerated in Section 53A of the Abkari Act. The learned Counsel for the revision petitioner would submit that no such steps are seen taken in this case and no document has been produced to substantiate the compliance of Section 53A, which is fatal to the prosecution case. This court in **Appu v. State of Kerala,2016 (4) KLT SN 71** has held that procedures prescribed under Section 53 A are mandatory in nature and failure to follow procedure under Section 53A scrupulously would vitiate prosecution and for a successful prosecution, the Crl.R.P. No. 2056 of 2008 :8: procedures under Section 53A are to be followed. In view of the above, I find that there is noncompliance of Section 53A of the Act, the benefit of which should go in favour of the accused/revision petitioner. 9. Yet another contention raised by the counsel for the revision petitioner is that there is unexplained inordinate delay in completing the investigation. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC** **650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. 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_ Crl.R.P. No. 2056 of 2008 :9: _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 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_ .” Crl.R.P. No. 2056 of 2008 :10: In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. 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. 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. 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. **Sd/VIJU ABRAHAM JUDGE** sbk/-