Vinodan vs State Of Kerala
2023 Latest Caselaw 11401 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
   WEDNESDAY, THE 8TH 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

                            ORDER

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

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

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

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

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

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

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

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