Kochuraman vs State Of Kerala
2023 Latest Caselaw 10174 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                 CRL.REV.PET NO. 3989 OF 2007

AGAINST THE ORDER/JUDGMENT CC 593/1998 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS , ADOOR
   CR.A. 288/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)III,
                        PATHANAMTHITTA

REVISION PETITIONER/APPELLANT/ACCUSED:
          KOCHURAMAN, S/O NANU,
          SURESH BHAVANAM, PAZHAKULAM PADINJARU MURI,
          PALLICKAL VILLAGE, ADOOR TALUK.

          BY ADV SRI.B.MOHANLAL

RESPONDENT/RESPONDENT/COMPLAINANT & STATE:
          STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR
          OF ADOOR EXCISE RANGE, THROUGH THE PUBLIC
          PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM.

          BY ADV PUBLIC PROSECUTOR SRI. M. C. ASHI


    THIS CRIMINAL REVISION PETITION HAVING BEEN
FINALLY HEARD ON 21.09.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 CRL. R.P. No.3989 of 2007
                                 :2:




                           VIJU ABRAHAM, J.
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                      CRL. R.P. No.3989 of 2007
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               Dated this the 21st day of September, 2023

                               ORDER

The revision petitioner is the accused in C.C. No.593/1998

on the file of the Judicial First Class Magistrate Court, Adoor,

alleging commission of offence punishable under Section 55(a) of

the Abkari Act.

2. The prosecution allegation is that on 19.05.1997 at about

12.45 pm, the accused was found in possession of 5 litres of illicit

arrack by the Excise Range Officer while conducting patrolling

duty through a public road starting from Pullipara junction

leading to Perumchira Ela and thus committed the offence.

3. To prove the prosecution case, PWs 1 to 5 were examined

and marked Exts. P1 to P3 and MO1. The trial court convicted the

accused and sentenced him to undergo simple imprisonment for a

period of three months and to pay a fine of Rs.15,000/- and in

default of payment of the fine, to undergo simple imprisonment

for a further period of one month. Though appeal was preferred CRL. R.P. No.3989 of 2007

as Crl. Appeal No.288/2004, the Additional(Adhoc) Fast Track

Court-III, Pathanamthitta as per judgment dated 31.08.2006,

dismissed the appeal, confirming the conviction and sentence.

4. The learned counsel appearing for the revision petitioner

submitted that the conviction and sentence passed by both the

courts are illegal, improper and irregular and that the prosecution

was not successful in proving the case against the petitioner

/accused beyond reasonable doubt. It is also submitted that it is

PW2, who arrested the accused, but no arrest memo or arrest

intimation is seen produced to prove the arrest or intimation of

arrest to the near relatives. PW4 and 5 who are independent

witnesses examined on the side of the prosecution did not support

the prosecution case. It is further contended that in Ext.P2

mahazar, no specimen seal is seen affixed and that no property

list is seen produced and marked. It is also contended that no

forwarding note was marked and produced before the trial court.

The learned counsel for the revision petitioner based on the

evidence of PW1 submits that a request was made to the court to

take samples from the thondi articles and to send the same for CRL. R.P. No.3989 of 2007

chemical analysis and the sample being taken by the court, the

same is irregular since the court has no power to do so.

5. 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.

6. The first contention raised by the learned counsel for the

revision petitioner is that in the present case, no arrest memo or CRL. R.P. No.3989 of 2007

arrest intimation is produced and marked to prove the arrest of

the petitioner and the consequential intimation of the same to the

near relative. The Apex Court in D.K.Basu v. State of West

Bengal [(1997) 1 SCC 416], has held that preparation of arrest

memo is a mandatory requirement and that it should be

countersigned by the arrestee and shall contain the time and date

of arrest. This court in Baburaj's case cited supra has held that

the non-production of the arrest memo and arrest intimation will

lead to an inference that the same was not prepared at the time of

the alleged arrest. The prosecution case has been built upon the

foundation that the accused was arrested while possessing the

contraband substance and therefore the noncompliance of

mandatory requirements regarding arrest makes the alleged

arrest doubtful. A similar view was taken by this court in

Ramankutty v. Excise Inspector, Chelannur Range[2013 (3)

KLT SN 83] which held that noncompliance of mandatory

requirements to be complied with at the time of arrest is fatal to

the prosecution as the seizure of the contraband has no existence

without proving the factum of the arrest. This court in Rafeeque CRL. R.P. No.3989 of 2007

v. Sub Inspector of Police[2020 (4) KLT 188] has held that

when the signature of the accused is not there in the arrest

memo, the same is also fatal to the prosecution case. A similar

view was taken by this court in Udayan v. State of Kerala,

[2023 (1) KLT 371]. Therefore, the noncompliance of this

mandatory requirement makes the prosecution case doubtful.

7. The next contention raised by the counsel for the revision

petitioner is that in Ext P2 mahazar, no specimen seal is seen

affixed and that no property list is seen produced and marked in

the trial. It is further contended that no forwarding note is

produced and marked in trial. 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. In the present case, the forwarding note by

which the sample of the contraband was sent for chemical CRL. R.P. No.3989 of 2007

analysis is also not produced and marked. In Natarajan 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 (in the present case no forwarding note is

marked), 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 Gopalan v.

State of Kerala[2016 (3) KLT SN 24], Prakasan v. State of

Kerala [2016 (1) KLT SN 89 (C.No.96)], Ramachandran v.

State of Kerala[2021 (1) KLT 739] and in Moothedath

Sivadasan v. State of Kerala, [2021 (1) KLT 744]. This court

in Sasidharn v. State of Kerala[2007 (1) KLT 720] has

considered on 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 CRL. R.P. No.3989 of 2007

Court in State of Rajasthan v. Daulat Ram[AIR 1980 SC

1314], this court in Sasidharn's case supra held that when the

sample 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. The nonproduction of the property list

in the trial also cast a doubt on the prosecution case regarding

the alleged seizure of the contraband from the possession of the

petitioner. 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.

8. Yet another contention raised by the counsel for the CRL. R.P. No.3989 of 2007

revision petitioner based on the evidence of PW1 is that a request

was made to the court to take samples from the thondi articles

and to send the same for chemical analysis and the sample being

taken by the court, the same is irregular, since the court has no

power to do so. A perusal of the appellate court judgment reveals

the said aspect wherein it stated that the evidence of PW1 would

show that as per his requisition, the sample was taken from the

court. This court in Baburaj's case supra has held that drawing

the samples and sealing the same are acts within the exclusive

province of the police official or the excise official concerned and

the magistrate is not empowered to draw samples from the

contraband produced before him by the detecting officer and the

said act of drawing samples by the court will go against the

prosecution case. A similar view was taken in Smithesh v. State

of Kerala[2019 (2) KLT 974].

9. 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 CRL. R.P. No.3989 of 2007

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 sm/