V.K.Gopi vs State Of Kerala
2023 Latest Caselaw 11864 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
               THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    FRIDAY, THE 17TH 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
             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

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

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 offence and PW4 was

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

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

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

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

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