Vinodan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 CRL.REV.PET NO. 1786 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 517/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ``` ``` SC 394/2004 OF ASSISTANT SESSIONS COURT/SUB COURT, VADAKARA ``` ## **`REVISION PETITIONER/S:`** ``` VINODAN AGED 28 YEARS, KALAMKULATH HOUSE,, ERAMALA AMSOM. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ## **`SR.P.P. -SHRI RENJITH GEORGE`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ``` ``` ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 2 ``` ## **O R D E R** This revision is at the instance of the accused in S.C No. 394 of 2004 on the file of the Assistant Sessions Judge, Vadakara, assailing the judgment in Crl.Appeal No. 517 of 2006, on the file of the Additional District and Sessions Judge, Vadakara, which upheld his conviction and sentence under Section 8(1) of the Abkari Act. 2. The prosecution case is that, on 17.7.2001 at 6:30 pm, the revision petitioner was found transporting 3 litres of arrack in a can containing 5 litre capacity at Eramala Desom in Vadakara Taluk. PW5, the Excise Inspector, and party detected the offence. The revision petitioner was arrested and the contraband was seized. After completing all legal formalities, the revision petitioner along with the records and articles seized were produced before the Excise Range Office and thereafter before the Jurisdictional Magistrate Court. PW6 investigated the case and laid charge against the revision petitioner under ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 3 ``` Section 8(1) of the Abkari Act. 3. On appearance of the revision petitioner on summons before the trial court, charge was framed under Section 8(1) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. Pws 1 to 6 were examined, Exts. P1 to P7 were marked and MO1 was identified from the prosecution side. 4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 Cr.PC and he denied all the incriminating circumstances brought on record, but no defence evidence was produced. 5. After hearing the rival contentions from either side, and on analyzing the facts and evidence, the trial court found the revision petitioner guilty under Section 8(1) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for two years and fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a further period of six months. Aggrieved by the conviction and sentence, the revision petitioner ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 4 ``` preferred Crl. Appeal No.517 of 2006, and the appellate court, on re-appreciation of the facts and evidence, upheld his conviction and sentence and dismissed the appeal, against which he has preferred this revision petition. 6.Now, this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court. - 7.Heard learned counsel for the revision petitioner - and learned Public Prosecutor. 8.PW5, the detecting officer, and PW2, the preventive officer in the patrolling team, deposed the case in tune with the prosecution. Pws 1 and 3, the independent witnesses, turned hostile to the prosecution. PW6 investigated the offence and laid charge sheet against the revision petitioner. 9. Learned counsel for the revision petitioner pointed out the material defects in the prosecution case which, according to her, will render the conviction and sentence ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 5 ``` invalid. She would say that, the witnesses were questioned by the investigating officer in the year 2004 i.e., after about three years of the incident. The final report also was submitted after about three years of the occurrence. The delay in investigation and filing the final report is not properly explained, and, so it is fatal to the prosecution. 10.In **Krishnan H v. State [2015 (1) KHC 822]** , this Court held that, in the absence of sufficient explanation, long delay in conducting investigation is fatal to the prosecution. Section 50 of the Abkari Act mandates that investigation into the offence shall be conducted and completed without unnecessary delay. In the case on hand, there occurred delay of three years in conducting investigation and filing final report. The prosecution has not offered any explanation for this inordinate delay in conducting the investigation. 11. Another point canvassed by the learned counsel for the revision petitioner is that, there is no impression of the specimen seal in Ext.P1 seizure mahazar. In order to ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 6 ``` establish the fact that the sample, which was seized as per Ext.P1 seizure mahazar, was the sample which reached the court and the chemical examiner’s lab, the specimen impression of the seal affixed in the seizure mahazar is an important factor. If the sample seal provided in the seizure mahazar is the very same sample seal affixed in the sample bottle which reached the court and the chemical examiner’s lab, it will prove that the sample which was recovered from the possession of the revision petitioner was the very same sample which reached the chemical examiner’s lab for analysis. The absence of such specimen impression of the seal in the seizure mahazar is capable of creating a genuine doubt, regarding the identity of the sample which reached the chemical examiner’s lab for examination. 12.In **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744],** this Court held that, when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 7 ``` to hold that the sample which reached the Chemical Examiner’s Laboratory was the sample taken from the contraband, allegedly seized from the possession of the accused. 13. Another contention taken up by the learned counsel for the revision petitioner is that, in Ext.P6 forwarding note, the sample seal provided is that of Judicial First Class Magistrate Court, Vadakara. The sample seal affixed in the sample bottle is not seen affixed in the forwarding note. Ext.P1 mahazar shows that, 180 ml of the sample was taken from the can of 3 litres of arrack found in possession of the revision petitioner, and the sample bottle was sealed and labelled at the place of occurrence itself. If so, the sample seal affixed in the sample bottle might have been the sample seal of the detecting officer. But, in the forwarding note, that sample seal is not seen affixed and so, it is as good as not affixing the sample seal in the forwarding note. 14.In **Bhaskaran v. State of Kerala 2020 (5) KLT** ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 8 ``` **Online 1057]** , this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the court to satisfy the genuineness of the sample produced before the court. Moreover, the detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further, the nature of the seal used shall be mentioned in the seizure mahazar also. 15. In Ext.P7 chemical analysis report, the chemical examiner has reported that, the seals on the bottle were intact and found tallied with the sample seal provided. Since the sample seal affixed in the sample bottle at the place of occurrence by the detecting officer is not seen in the forwarding note, the statement of the chemical examiner that the seal found tallied with the sample seal provided is of no consequence. In the forwarding note, the seal provided was that of the Magistrate court and that is not sufficient to establish the link evidence that the sample ``` CRL.REV.PET NO. 1786 OF 2007 ``` ``` 9 ``` which was allegedly seized from the possession of the revision petitioner at the place of occurrence was the sample which reached the chemical examiner for analysis. 16.In **Madhavan v. State of Kerala [2019 (4) KLT 18]** , this Court held that, when the prosecution relies upon the report of the chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample, till the same reached the hands of the chemical examiner. 17.To sum up, the defects pointed out by the learned counsel for the petitioner are sufficient to doubt the genuineness of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. The absence of specimen impression of the seal in the mahazar, forwarding note etc. are sufficient to prove that, ## **`CRL.REV.PET NO. 1786 OF 2007`** the prosecution failed to establish the link evidence starting from the seizure, till the sample reached the hands of the chemical examiner. The inordinate delay in conducting investigation without any satisfactory explanation also turns fatal to the prosecution case. So, the conviction and sentence of the revision petitioner, without taking into account the impact of the material defects noted above are liable to be interfered with, or else it will cause miscarriage of justice. So, the conviction and sentence imposed by the trial court as well as the appellate court are hereby set aside. In the result, the revision petitioner is found not guilty of the offence punishable under Section 8(1) of the Abkari Act and he is acquitted under Section 235(1) of the Cr.PC. His bail bond is cancelled and he is set at liberty forthwith. The Revision Petition is allowed accordingly. **Sd/-** ## **SOPHY THOMAS** **JUDGE** **SJ**