V.K. GOPI v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 49/2008 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, KALPETTA ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 379/2002 OF ASSISTANT SESSIONS ``` ``` COURT, SULTHANBATHERY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` V.K.GOPI S/O GOVINDARAJ, VENNIYODE, VALIYAKUNNU, KOTTATHARA, AMSOM, WAYANAD. ``` ``` BY ADV SRI.LALJI P.THOMAS ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ## **`STATE OF KERALA`** ``` REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` SRI. RENJITH GEORGE – SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 2 ``` ## **ORDER** This revision is at the instance of the accused in S.C. No.379 of 2002 on the file of Assistant Sessions Judge, Sulthan Bathery, assailing the judgment in Crl.Appeal No.49 of 2008 on the file of Additional Sessions Judge, (Adhoc-II), Kalpetta, which upheld his conviction and sentence under Section 58 of the Abkari Act. 2. The prosecution case is that, on 24.04.2001 at 5.00 p.m., the revision petitioner was found in possession of 4 litres of illicit arrack in a 5 litre can, near Cherupuzha Bridge in Vythiri Taluk. PW3-the Excise Inspector and party, while on patrol duty, detected the offence, and they arrested the revision petitioner and seized the contraband. 3. After completing all the legal formalities like sampling, sealing etc., the revision petitioner was produced before the Excise Range Office along with the articles seized and documents prepared. PW5-Excise Inspector investigated the case and PW6-Excise Inspector completed the investigation and laid charge sheet against the revision ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 3 ``` petitioner under Section 58 of the Abkari Act. 4. On appearance of the revision petitioner before the trial court, charge was framed under Section 58 of the Abkari Act, read over and explained, to which he pleaded not guilty and claimed to be tried. PWs.1 to 6 were examined, Exts.P1 to P10 were marked and MO1 was identified from the side of the prosecution, to prove its case. 5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C., and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 6. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 58 of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs.1 lakh, and in default to undergo simple imprisonment for a further period of three months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 4 ``` No.49 of 2008. The appellate court, finding no reasons to interfere, dismissed the appeal, upholding his conviction and sentence, against which he has preferred this revision petition. 8. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Section 58 of the Abkari Act. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. PW3 detected the and PW4 was offence accompanying him in the patrolling party. Both of them stated that, they found the revision petitioner carrying a 5 liter can containing 4 litres of illicit arrack, and so he was arrested at the spot and the contraband was seized. 11. Learned counsel for the revision petitioner submitted that, there was no such arrest or seizure on 24.04.2001, and sufficient materials are there to show that the prosecution case was not genuine. The seizure was on ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 5 ``` 24.04.2001 at 5.00 p.m. Ext.P5 property list shows that, the contraband along with the sample bottle were produced before the office of the Excise Inspector, Kalpetta Range on 25.04.2001. There was delay of one day in producing the contraband and the sample bottle before the Excise office. Ext.P4, crime and occurrence report, will not show the date and time of its registration. The prosecution failed to explain the delay in producing the contraband and the sample before the Excise Range office on the date of incident itself. 12. The prosecution is duty bound to establish the link evidence that the sample which was analysed by the chemical examiner was the sample seized from the contraband which was allegedly possessed by the revision petitioner at the time of his arrest. The sample seal affixed in the seizure mahazar, as well as in the sample bottle, if it tallied, it will give an assurance that the sample was taken and it was sealed at the spot itself. But in the case on hand there is no specimen seal in the seizure mahazar. When there is no impression of the specimen seal in the seizure mahazar, we cannot ascertain whether the seal found on the sample ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 6 ``` bottle was the very same seal affixed in the seizure mahazar prepared at the scene of occurrence. 13. In **Bhaskaran v. State of Kerala** [2020 KHC 5296], 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 in 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. 14. As there is no specimen seal in the seizure mahazar and its nature also is not mentioned in the mahazar, it is a circumstance to doubt the genuineness of the sample. ## 15. 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 to hold that, the sample which reached the chemical examiner’s lab was the sample taken from the contraband allegedly seized from the ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 7 ``` possession of the accused. 16. The prosecution owes a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, reached the hands of the chemical examiner, in a foolproof condition [See **Sasidharan v. state of Kerala** 2007 (1) KLT 720]. 17. Though in Ext.P10 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 there was no impression of the specimen seal in the seizure mahazar, we cannot say that, the seal on the sample bottle was the seal affixed at the place of occurrence. So, no sanctity could be attached to the statement of the chemical examiner, that the seal found on the sample bottle found tallied with the sample seal provided. 17. For the aforementioned reasons, a genuine doubt arises as to the veracity of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. 18. In the result, the conviction and sentence imposed on the revision petitioner by the trial court as well as the ``` CRL.REV.PET NO. 2734 OF 2010 ``` ``` 8 ``` appellate court, under Section 58 of the Abkari Act are hereby set aside. He is found not guilty of the offence alleged, and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition stands allowed accordingly. **Sd/-** **SOPHY THOMAS JUDGE** LU