Vinu @ Vinod vs. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA,** **1945** **CRL.REV.PET NO. 875 OF 2014** **CRIME NO.103/2009 OF Adhur Police Station, Kasargod AGAINST THE ORDER/JUDGMENT CRA 43/2013 OF IN THE COURT OF SESSION, KASARAGOD** **SC 269/2010 OF ASSISTANT SESSIONS COURT, KASARAGOD** ## **REVISION PETITIONER/ACCUSED NO.1:** VINU @ VINOD AGED 37 YEARS S/O.P.KORAN,VENGATHADUKKA,KUMBDAJE VILLAGE,MULLERIA,KASARAGOD TALUK. BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031. ## **OTHER PRESENT:** PP - M.C.ASHI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Crl.R.P.No.875 of 2014 2** ## **VIJU ABRAHAM,J** ## **-----------------------** ## **Crl.R.P.No.875 of 2014** ## **------------------------------------Dated this the 18[th] day of December, 2023** ## **ORDER** The revision petitioner is the 1[st] accused in S.C. No.269 of 2010 on the file of the Assistant Sessions Judge, Kasaragod alleging commission of offence punishable under Sections 55(b) and 55(g) of the Abkari Act. 2. The prosecution case is that on 02.05.2009 at 1.20 a.m the accused were found engaged in the manufacture of illicit arrack for the purpose of sale using various utensils for distillation in the reserve forest land situated around 300 metres east of a water tank belonging to the local panchayat on the north of Ganesha Mandiram in Mulleria town, Karaduka. The accused persons are thereby alleged to have committed the offence as aforesaid. 3. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P12 were marked and ## **Crl.R.P.No.875 of 2014 3** MO1 was identified. 4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo simple imprisonment for 2 years 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. Set off was also allowed by the trial court. 5. An appeal preferred by the revision petitioner as Crl. Appeal No.43 of 2013 was dismissed by the appellate court confirming the conviction and sentence imposed by the trial court, but modified the sentence to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for 1 month. Aggrieved by the said conviction and sentence, this Crl.Revision Petition is filed. 6. The learned counsel for the revision ## **Crl.R.P.No.875 of 2014 4** petitioner raised the following contentions: The first contention is regarding the delay in the production of the seized contraband before the court. The specific contention raised by the petitioner is that though the alleged seizure was on 2.5.2009 and the sample collected from the two cans containing arrack and wash were produced before the court as per Ext.P5 property list only on 4.5.2009. 7. The second contention is regarding noncompliance of Section 53A of the Abkari Act. It is contented that though the allegation is that a can full of illicit arrack and another plastic can containing wash and other utensils were seized, the wash was destroyed then and there and the residue arrack can, utensils, implements and a mobile phone were taken into custody as per Ext P3 seizure mahazar and the sample was produced before the court as per Ext P5 property list. Since the wash was destroyed without following the provisions of Section 53A of the Abkari Act, the ## **Crl.R.P.No.875 of 2014 5** seizure etc remains doubtful. It is further contended that as per the evidence of PW4, the wash was destroyed on the spot and the balance of contraband properties was produced before the Assistant Excise Commissioner (authorized officer). PW4 further states that P7 inventory was prepared at the Adoor Police Station and the inventory so prepared was produced before the Assistant Excise Commissioner on 05.05.2009 and there is no evidence regarding the date on which the same was received by the Assistant Excise Commissioner and it cannot be said which police constable has prepared the inventory. Based on this it is contended that there is total noncompliance of Section 53A. 8. Yet another aspect to be considered is that the detecting party seized various articles including utensils and implements for the purpose of manufacturing arrack which were produced before the court as per Ext.P5 as item Nos. 3 to 7. A perusal of Ext.P5 would reveal that those articles ## **Crl.R.P.No.875 of 2014 6** were entrusted to the police for keeping in safe custody. It is seen that at the time of trial when the police was called upon to produce those materials it was submitted before court through Ext.P12 report that the articles so entrusted were lying buried under the remnants of the old police station building making it impossible to produce them before the court. In view of the same, the petitioner would contend that due to nonproduction of such material evidence, the charge against the petitioner could not be proved by the prosecution. 9. Yet another contention raised is that Ext P6 forwarding note is dated 04.05.2009 but the samples were forwarded for examination to the chemical analysis lab only on 17.06.2009 and the same reached the lab on 18.06.2009 and that there is no satisfactory explanation for the safe custody of the samples in between 04.05.2009 and 17.06.2009 by examining the property clerk or the guard through whom the sample was sent for chemical analysis. ## **Crl.R.P.No.875 of 2014 7** 10. 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 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. 11. As regards the first contention regarding delay in producing the contraband before the court, the specific contention raised by the petitioner is that though the alleged seizure was on 2.5.2009 ## **Crl.R.P.No.875 of 2014 8** and the sample collected from the two cans containing arrack and wash were produced before the court as per Ext.P5 property list only on 4.5.2009. PW4 who is the Detecting Officer admits that he has produced the samples as per Ext.P5 but there is absolutely no explanation for the delay that occurred in production of the same before the court. Petitioner relies on the judgment in _**Chandran and another v. State of Kerala and another (2022 KHC 3500)**_ . Paragraph 12 of the judgment which reads as follows: _“12. Coming to the facts of the case, the detection was on 2.2.1998. The accused were arrested on the spot. They were produced at the Court on 3.2.1998. PW1 entrusted the seized contraband substance as well as the sample bottle to PW4 on 2.2.1998. Still, they were produced only on 4.2.1998 at the Court. Thus, there was two days' delay. This has not been explained at all. There was absolutely no evidence to show as to how and in what condition the contraband articles were kept. When there is delay, however short it may be, in producing the seized contraband substance and the_ ## **Crl.R.P.No.875 of 2014 9** _sample drawn from it at the Court, the prosecution has not only to explain the delay satisfactorily, but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution failed to satisfy this twin conditions.”_ This court in **Ramachandran v. State of Kerala** **(2021 (1) KLT 793** has held that unexplained delay in producing the contraband and sample before the court 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 its production before the court. In **Vikraman v. State** **of Kerala 2018 KHC 3177)** it was held that when there is no proper explanation for the delay, the possibility of tampering with the properties during the said period cannot be ruled out. Hence, I am of the opinion that the unexplained inordinate delay is fatal to the case of the prosecution. ## **Crl.R.P.No.875 of 2014 10** 12. The second contention is regarding noncompliance of Section 53A of the Abkari Act. It is contented that though the allegation is that a can full of illicit arrack and another plastic can containing wash and other utensils were seized, the wash was destroyed then and there and the residue arrack can, utensils, implements and a mobile phone were taken into custody as per Ext P3 seizure mahazar and the sample was produced before the court as per Ext P5 property list. Since the wash was destroyed without following the provisions of Section 53A of the Abkari Act, the seizure etc remains doubtful. It is further contended that as per the evidence of PW4, the wash was destroyed on the spot and the balance of contraband properties was produced before the Assistant Excise Commissioner (authorized officer). PW4 further states that P7 inventory was prepared at the Adoor Police Station and the inventory so prepared was produced before the Assistant Excise Commissioner on 05.05.2009 and ## **Crl.R.P.No.875 of 2014 11** there is no evidence regarding the date on which the same was received by the Assistant Excise Commissioner and it cannot be said which police constable has prepared the inventory. Based on this it is contended that there is total noncompliance of Section 53A. Section 53A deals with the disposal of seized liquor, intoxicating drugs or articles and the Section mandates that the same could be disposed of by the authorized officer referred to in Section 67B (as per the said Section authorized officer shall be an officer not below the rank of Assistant Excise Commissioner) and the authorized officer shall prepare an inventory of seized liquor, intoxicating drugs or articles and make an application to the magistrate for certifying the correctness of the inventory and for other procedures mentioned therein. As per the evidence of PW4, the wash was destroyed on the spot and the balance of contraband properties was produced before the Assistant Excise Commissioner ## **Crl.R.P.No.875 of 2014 12** (authorized officer). PW4 further states that P7 inventory was prepared at the Adoor Police Station and the inventory so prepared was produced before the Assistant Excise Commissioner on 05.05.2009 and there is no evidence regarding the date on which the same was received by the Assistant Excise Commissioner and it cannot be said which police constable has prepared the inventory. So going by the evidence of PW4, wash was destroyed even before preparing the inventory in accordance with Section 53A and even the inventory prepared regarding the balance articles, it has come out in evidence that it was prepared at the police station and produced before the Assistant Excise Commissioner. The said authorized officer was not examined also. Going by the said evidence that wash was destroyed before preparation of the inventory and that the inventory of the balance articles were prepared at the police station and brought before the Assitant Excise Commissioner, it could be safely concluded that there is total **Crl.R.P.No.875 of 2014 13** violation of Section 53A of the Abkari Act. The decision in _**K. Umesh v. State of Kerala [2023 (1) KLT 7]**_ and also the judgment of this Court in ## _**Balakrishna Rai v. State of Kerala [2020 (3) KLT**_ _**727]**_ fortifies the above said finding. 13. Yet another aspect to be considered is that the detecting party seized various articles including utensils and implements for the purpose of manufacturing arrack which were produced before the court as per Ext.P5 as item Nos. 3 to 7. A perusal of Ext.P5 would reveal that those articles were entrusted to the police for keeping in safe custody. It is seen that at the time of trial when the police was called upon to produce those materials it was submitted before court through Ext.P12 report that the articles so entrusted were lying buried under the remnants of the old police station building making it impossible to produce them before the court. In view of the fact that crucial material objects could not be produced ## **Crl.R.P.No.875 of 2014 14** before the court at the time of evidence will enure to the benefit of the accused. 14. Yet another contention raised is that Ext P6 forwarding note is dated 04.05.2009 but the samples were forwarded for examination to the chemical analysis lab only on 17.06.2009 and the same reached the lab on 18.06.2009 and that there is no satisfactory explanation for the safe custody of the samples in between 04.05.2009 and 17.06.2009 by examining the property clerk or the guard through whom the sample was sent for chemical analysis. In **Krishnadas v. State of** **Kerala, 2019 KHC 191,** this court has held that the unexplained delay in between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. This court in **Viayan 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 ## **Crl.R.P.No.875 of 2014 15** receive the thondy and the measures to be ensured by the chemical examiner and held that the thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. 15. 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 forthwith. 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 **Crl.R.P.No.875 of 2014 16** be refunded to the revision petitioner in accordance with the law. sd/- **VIJU ABRAHAM, JUDGE** pm