Venugopalan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 1581 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 34/2010 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC), PALAKKAD SC 667/2007 OF ASSISTANT SESSIONS COURT, OTTAPPALAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` VENUGOPALAN AGED 52 YEARS S/O.RAGHAVAN, KARIPPOTTIL VEED, KANAYAM KUMBARAKKATTI DESOM, SHORNUR, OTTAPPALAM, PALAKKAD. ``` ``` BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY P.P., SRI. M.C. ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 1581 of 2012 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 1581 of 2012 ============================ Dated this the 6[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 667 of 2007 of the Assistant Sessions Court, Ottapalam, alleging commission of offences punishable under Sections 55(a), 8(1) & (2) of the Abkari Act. 2. The prosecution allegation is that, on 26.10.2004, at about 1.15 pm, on the Kulappully-Kanayam Kumbarakkatti road, the accused was found carrying four litres of illicit arrack in a plastic can having capacity of five litres and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 6 and Exts P1 to P7 were marked and MO1 was identified. The trial Court found the accused guilty and convicted him to undergo rigorous 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 further period of three months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed Crl.R.P. No. 1581 of 2012 :3: by the trial Court, an appeal was preferred as Crl.Appeal No.34 of 2010 before the Additional District and Sessions Court, Adhoc No:1, Palakkad, and the conviction was confirmed but the sentence was modified and reduced to rigorous imprisonment for six months and to pay a fine of Rs. 1,00,000/and in default to undergo simple imprisonment for three months. Set off was also allowed. 5. The learned Counsel appearing for the revision petitioner raised the following contentions. In Ext P2 mahazar, no specimen seal is seen affixed nor the description of the seal affixed on the sample is stated therein. Yet another contention raised by the petitioner is that the occurrence was on 26.10.2004 and the chemical analysis report was ready on 02.06.2006, a complainant was filed only on 15.02.2007 and therefore there is an inordinate unexplained delay in completing the investigation which goes against the mandate of Section 50 of the Abkari Act that the investigation shall be completed without any unnecessary delay. 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. 1581 of 2012 :4: 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. It is contended that in Ext P2 mahazar no specimen seal is seen affixed nor the description of the seal affixed on the sample is stated in the mahazar. 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. 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 Crl.R.P. No. 1581 of 2012 :5: 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 **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, 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 **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 Crl.R.P. No. 1581 of 2012 :6: 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 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. Yet another contention raised by the petitioner is that the occurrence was on 26.10.2004 and the chemical analysis report was ready on 02.06.2006, a complainant was filed only on 15.02.2007 and there is an inordinate unexplained delay in completing the investigation which goes against the mandate of Section 50 of the Abkari Act that the investigation Crl.R.P. No. 1581 of 2012 :7: shall be completed without any unnecessary delay. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** , _**Surendran and Another v. State of Kerala 2013(3) KHC 780, Kumaran v. State of Kerala, 2016 (4) KLT 718**_ and the decision in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** in support of his contentions. 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 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).”_ Crl.R.P. No. 1581 of 2012 :8: ## 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_ .” ## In **Kumaran’s** case (supra), paragraph 6 reads as follows: _“6. The learned counsel for the revision petitioner has argued that since there was inordinate and unexplained delay in conducting the investigation, the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision in Krishnan H. v. State of Kerala (2015 (2) KLT SN 8(C.No.11) =2015 (1) KHC 822) to buttress his_ Crl.R.P. No. 1581 of 2012 :9: _argument. In Krishnan (supra), the Court held that long delay in conducting the investigation, in the absence of sufficient explanation, is fatal to the prosecution. In this case, even though the incident was on 24.7.2007, the investigation was conducted and the final report was filed before the Court only on 13.1.2009. PW2 was the investigating officer. PW2 started the investigation of this case only on 15.2.2008. No explanation had been given by the prosecution as to why there was long delay in conducting the investigation and filing the final report before the Court. Since there was long and unexplained delay in conducting the investigation and filing the final report in this case, the revision petitioner is entitled to benefit of doubt, particularly when the quantity of the contraband involved in this case is only two litres.”_ In **Moothedath Sivadasan** case (supra) it was held that unexplained delay in completing the investigation is fatal to the prosecution case. 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. 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 Crl.R.P. No. 1581 of 2012 :10: the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty forthwith. **Sd/VIJU ABRAHAM JUDGE** sbk/-