Kerala High Court
Jayachandran @ Babu vs State Of Kerala on 30 September, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.REV.PET NO.131 OF 2014
AGAINST THE JUDGMENT DATED 19.11.2013 IN CRA NO.144 OF 2011
OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, PALAKKAD ARISING OUT
OF THE JUDGMENT OF CONVICTION AND SENTENCE PASSED IN S.C.NO.758/2007
DATED 23.02.2011 ON THE FILE OF THE ASSISTANT SESSIONS COURT
(ADDL.), PALAKKAD
REVISION PETITIONER/APPELLANT/ACCUSED:
JAYACHANDRAN @ BABU,
AGED 27 YEARS
S/O.SUBRAMANIAN, VALAYAKKODE,
PUDUPPARIYARAM, PALAKKAD.
BY ADVS.
SRI.NAGARAJ NARAYANAN
SRI.BENOJ C AUGUSTIN
SRI.SAIJO HASSAN
SRI.SEBIN THOMAS
SRI.VIVEK V. KANNANKERI
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.ALEX M.THOMBRA, SR.PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09.08.2024, THE COURT ON 30.09.2024 DELIVERED THE FOLLOWING:
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Crl.R.P.No.131/2014 2
ORDER
The revision petitioner is the convict in S.C.No.758/2007
of the Sessions Court, Palakkad, tried by the Assistant
Sessions Judge, Palakkad. He was prosecuted for the
commission of offence under Section 8(1) and (2) of the
Abkari Act. As per the judgment dated 23.02.2011, the
learned Assistant Sessions Judge, Palakkad sentenced the
petitioner to simple imprisonment for six months and fine
Rs.1,00,000/- with a default clause of simple imprisonment for
six months under Section 8(2) read with Section 8(1) of the
Abkari Act. Though the petitioner had filed appeal before the
Sessions Court, Palakkad as Crl.A.No.144/2011, the Appellate
Court confirmed the conviction and modified the sentence to
simple imprisonment for four months, retaining the fine as
such. The present revision petition is directed against the
above concurrent findings of conviction of the Trial Court and
the Appellate Court, and the modified sentence imposed by
the Sessions Court, Palakkad in Crl.A.No.144/2011.
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2. The case against the petitioner is that, on
05.07.2006 at about 6:00 p.m, he was found to have been in
possession of five litres of arrack in a black jerry can of 5 litres
capacity. The Excise Inspector of Parli Range and his team
are said to have arrested the petitioner with the contraband
arrack and collected samples on the spot. The petitioner was
produced before the Magistrate concerned and remanded to
judicial custody. The contraband items seized from the
petitioner, as well as the sample collected on the spot, are said
to have been forwarded to the Magistrate concerned. From
the Court of the Judicial First Class Magistrate, the aforesaid
sample is said to have been sent for chemical examination to
the Chemical Examiner's Laboratory. After the completion of
the investigation, the Excise Inspector of Parli Excise Range
laid the final report before the Magistrate concerned in respect
of the offence under Section 8(1) and (2) of the Abkari Act.
3. Upon commitment and make over of the case, the
learned Assistant Sessions Judge, Palakkad proceeded with
the trial by framing charges under Section 8(1) and (2) of the
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Abkari Act. Four witnesses were examined from the part of
the prosecution as PW1 to PW4 and 8 documents were marked
as Exts.P1 to P8. One material object was identified as MO1.
After the close of the prosecution case, the petitioner was
questioned by the learned Assistant Sessions Judge, Palakkad
under Section 313(1)(b) of the Cr.P.C The petitioner totally
denied the incriminating circumstances put to him in the above
examination. Finding that there is no scope for an acquittal
under section 232 Cr.P.C., the learned Assistant Sessions
Judge afforded opportunity to the petitioner to adduce defence
evidence. However, the petitioner did not adduce any
evidence. After the evaluation of the aforesaid evidence and
hearing both sides, the learned Assistant Sessions Judge
arrived at the finding that the petitioner committed offence
punishable under Section 8(1) and (2) of the Abkari Act.
Accordingly, the petitioner was awarded the sentence as
stated hereinabove. In the appeal filed before the Sessions
Court, Palakkad as Crl.A.No.144/2011, the learned III
Additional Sessions Judge, Palakkad who heard that appeal,
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found that there is absolutely no reason to interfere with the
conviction of the petitioner. However, the learned Additional
Sessions Judge modified the sentence imposed upon the
petitioner to simple imprisonment for four months retaining
the fine of Rs.1,00,000/- as such. The default clause of simple
imprisonment for six months awarded by the Trial Court was
modified to simple imprisonment for three months. It is the
aforesaid judgment of the III Additional Sessions Judge,
Palakkad in Crl.A.No.144/2011 which is under challenge in this
revision petition.
4. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
5. A perusal of the judgment of the Trial Court and that
of the Appellate Court would reveal that the above courts
placed heavy reliance upon the evidence tendered by the
Excise Officers who were examined as PW1, PW2 and PW4.
Among the above witnesses, PW1 was the Detecting Officer
and PW2 was the Assistant Excise Inspector who assisted him.
PW4 was the Excise Inspector who completed the investigation
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and laid the final report before the Magistrate concerned. The
Trial Court as well as the Appellate Court found that the
evidence adduced by the prosecution in respect of the seizure
of the contraband item from the accused, the collection of
samples, and the analysis of the aforesaid sample leading to
the finding that the contraband item contained Ethyl Alcohol
are reliable. However, a close scrutiny of the relevant records
as well as the evidence of PW1, PW2 and PW4 would reveal
that the procedures adopted in connection with the collection
of samples and the despatch of the samples to the Chemical
Examiner's Laboratory were fraught with so many
discrepancies rendering the whole process unbelievable. The
seizure mahazar marked as Ext.P2 does not contain the
detailed description of the seal affixed by the Detecting Officer
in the contraband item and the sample bottle. The modalities
followed by the Detecting Officer for the collection of samples
are not narrated in Ext.P2 mahazar. It is not even stated in
the mahazar that the sample was collected in a clean and
moisture free bottle. It is not clear from Ext.P2 mahazar as
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to whether the Detecting Officer had covered the lid portion of
the sample bottle with cloth and thereafter fastened the same
with twine and affixed the seal in wax at that portion. Thus,
it is not possible to discern from Ext.P2 mahazar as to whether
the Detecting Officer had followed foolproof and fair
procedures while the collection of samples.
6. It is also pertinent to note that there is absolutely
no evidence adduced by the prosecution to show that the
sample collected from the scene of crime was forwarded to the
Magistrate in a tamper proof condition, and that it reached the
Court of Judicial First Class Magistrate concerned in the same
condition as it was at the time of collection of samples. Though
the property list marked as Ext.P4 contains the indication that
the black jerry can with 4.7 litres of arrack forwarded by the
Excise Inspector to the court was sealed and labelled, there is
absolutely no indication in the said document as to whether
the sample bottle which is stated to be a bottle of 375 ml
capacity containing 300 ml of arrack, was sealed and labelled.
Apart from a mere endorsement in Ext.P4 that the above items
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sent by the Excise Inspector were received and entered as
item No.99/2006, there is absolutely nothing stated in Ext.P4
by the staff of the Judicial First Class Magistrate concerned as
to whether the seal and label of the items received from the
Investigating Agency were verified and found to be intact.
7. As regards the despatch of the sample bottle from
the Court of Judicial First Class Magistrate-III, Palakkad to the
Chemical Examiner's Laboratory, it is pertinent to note that
the specimen seal impression seen in Ext.P5 forwarding note
and the specimen seal impression seen in the covering letter
of the learned Magistrate, attached to the said document, are
totally different. Thus, it is not clear as to whether the sample
bottle was forwarded to the Chemical Examiner's Laboratory
with the specimen seal impression shown in the covering letter
of the learned Magistrate, or with the specimen seal
impression seen in the space beneath column No.9 of Ext.P5
forwarding note. In the above circumstances, the indication in
Ext.P8 chemical examiner's report that the seals on the packet
and the bottle were intact, is of no consequence at all. Thus,
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it has to be stated that the prosecution had failed to establish
that the sample bottle was sent from the Court of Judicial First
Class Magistrate-III, Palakkad to the Chemical Examiner's
Laboratory in a tamper proof condition in the same state as it
was received from the investigating agency. It has been held
by this Court in Sasidharan v. State of Kerala [2007 (1)
KLT 720] that the prosecution has to establish that the same
sample collected by the Detecting Officer from the contraband
item reached the Chemical examiner's laboratory in a tamper
proof condition, and that the procedures adopted were in such
a way that the despatch of the sample item was in a foolproof
manner. In Rajamma v. State of Kerala [2014 KHC 2548]
it has been held that the prosecution has to prove that the
specimen impression of the seal stated to have been affixed
on the bottle containing the sample, was provided to the
Chemical Examiner for verification and to ensure that the
specimen seal, so provided, was tallying with the seal affixed
on the sample and in the absence of such link evidence, no
sanctity can be attributed to the Chemical Examiner's report.
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Going by the evidence in this case, it is not possible to say
that the sample was collected in a fair and foolproof manner
and forwarded to the Chemical Examiner's Laboratory, ruling
out the possibility of tampering and manipulations. That being
so, it has to be held that the Trial Court as well as the Appellate
Court went wrong in relying on the evidence adduced by PW1,
PW2 and PW4 on the basis of Exts.P1 to P8.
8. It is also pertinent to note that the judgment of the
Trial Court does not contain any indication that MO1 jerry can
contained the seal impression said to have been affixed by the
Detecting Officer intact; and that the label said to have been
affixed by the Detecting Officer in the said jerry can was there
at the time when the above material object was identified in
court. In the above circumstances, the reliance placed by the
Trial Court upon MO1, has also to be termed as improper.
Having regard to the above discrepancies and shortcomings
in the evidence adduced by the prosecution, it can only be held
that the prosecution had failed to establish that the accused
committed offence under Section 8(1) and (2) of the Abkari
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Act. Needless to say that the conviction of the petitioner by
the Trial Court and the Appellate Court, as well as the modified
sentence imposed by the Appellate Court, are liable to be set
aside.
In the result, the revision petition stands allowed. The
judgment dated 19.11.2013 of the III Additional Sessions
Judge, Palakkad in Crl.A.No.144/2011 is set aside. The
petitioner/accused, is found not guilty of the offence under
Section 8(1) and (2) of Abkari Act, charged against him, and
he is acquitted thereunder.
Sd/-
G.GIRISH, JUDGE
jsr
