V.V. Eliyas v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 CRL.REV.PET NO. 4336 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENT SC 152/2000 OF SUB COURT / COMMERCIAL COURT (KALPETTA), SULTHANBATHERY CRA 277/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` V.V.ELIYAS VEOLLOLUMBIL VEEDU, NAMBIKOLLI,, PARIVARAMKUNNU, NOOLPUZHA. ``` ``` BY ADV SRI.S.RAJEEV ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM (O.R.NO.17/1999, BATHERY EXCISE, RANGE). ``` ``` BY ADV PUBLIC PROSECUTOR - SRI. RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 4336 OF 2006 ``` 2 ## **`ORDER`** The revision petitioner is the sole accused in S.C.No.152 of 2000 on the file of the Assistant Sessions Judge, Sultan Bathery alleging commission of offence punishable under Section 55 (a) of the Abkari Act. 2. The prosecution case is that on 14.4.1999 at 11 am the accused was found in possession of 4 litres of illicit arrack in a 5 litre Can at Nambikkolli in Parivaramkunnu and thereby committed the offence punishable under Section 55 (a) of the Abkari Act. 3. To prove the prosecution case, PWs 1 to PW7 were examined and marked Exhibits P1 to P8 and identified MO1. 4. The trial Court found the accused guilty under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six months. ``` CRL.REV.PET NO. 4336 OF 2006 ``` 3 5. Challenging the conviction and sentence, an appeal was preferred as Crl. Appeal No.277 of 2004. The appeal was dismissed confirming the conviction and sentence passed by the trial Court. Assailing the conviction and sentence imposed by the courts below that the present revision petition is filed. 6. The learned counsel appearing for the revision petitioner raised the following contentions. In Ext. P1 seizure mahazar, no specimen seal is seen affixed nor there is description of the seal affixed on the sample bottle. Yet another contention raised by the petitioner is regarding the delay in filing the final report. The occurrence was on 14.04.1999. Though the Chemical Analysis Report was dated 20.07.1999, the final report was seen filed only on 27.04.2000, i.e., almost a year after and the said delay has not been explained by the prosecution. 7. 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 ``` CRL.REV.PET NO. 4336 OF 2006 ``` 4 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. 8. Let me consider the 1[st] contention raised by the petitioner that in Ext. P1 seizure mahazar, no specimen seal is seen affixed nor there is any description of the seal affixed on the sample bottle. The detecting officer has also not given any evidence in this regard. 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 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 ``` CRL.REV.PET NO. 4336 OF 2006 ``` 5 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 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 ``` CRL.REV.PET NO. 4336 OF 2006 ``` 6 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. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT 371** . 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. 9. The next contention raised by the petitioner is regarding the unexplained delay in completing the investigation and consequential filing of the complaint. As per the prosecution case, the occurrence was on 14.04.1999 and the chemical analysis report was ready on 20.07.1999, even thereafter the final report was filed only on ``` CRL.REV.PET NO. 4336 OF 2006 ``` 7 27.04.2000, i.e., after a delay of almost one year. 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**_ and the decision in **Moothedath Sivadasan** case (supra) 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 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_ ``` CRL.REV.PET NO. 4336 OF 2006 ``` 8 _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.”_ This Court in **Moothedath Sivadasan's** case cited **(Supra)** has held that unexplained delay in completing the investigation is fatal to the ``` CRL.REV.PET NO. 4336 OF 2006 ``` 9 prosecution case. There is no explanation offered for the delay in this case. 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** sah