Kerala High Court
Sunder Raj vs State Of Kerala on 4 April, 2025
2025:KER:29467
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 4TH DAY OF APRIL 2025/14TH CHAITHRA, 1947
CRL.REV.PET NO. 914 OF 2012
AGAINST THE JUDGMENT DATED 02.02.2012 IN Crl.A NO.203 OF 2011
OF ADDITIONAL SESSIONS COURT,THODUPUZHA ARISING OUT OF THE
JUDGMENT DATED 16.06.2011 IN SC NO.105 OF 2009 OF ASSISTANT
SESSIONS COURT,THODUPUZHA
PETITIONER/APPELLANT/ACCUSED
SUNDERRAJ
AGED 32 YEARS
S/O RAJ, 6 MURI LAYAM, ELLAPPETTY WEST DIVISION,
KDH VILLAGE, DEVIKULAM TALUK.
BY ADVS.
SRI.C.V.MANUVILSAN
SMT.K.VIDYA MANUVILSAN
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 EXCISE INSPECTOR,
DEVIKULAM.
BY ADV.SRI. RANJIT GEORGE, P.P.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04.04.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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CRL.RP. No.914 of 2012 :2:
K. V. JAYAKUMAR, J.
===========================
CRL.RP. No.914 of 2012
============================
Dated this the 4th day of April, 2025
ORDER
This criminal revision petition is preferred impugning
the judgment of the learned Additional Sessions Judge,
Thodupuzha in Crl.A.No.203/2011.
2. The revision petitioner herein is the sole accused in
Crime No.07/2008 of Excise Range Office, Devikulam
registered for offence punishable under Sections 8(1) and (2)
of the Abkari Act.
3. The prosecution case is that, on 13.03.2008 at
about 7.30 p.m. the petitioner was found in possession of 5
litres of arrack.
4. The trial court convicted and sentenced the
accused to undergo Rigorous imprisonment for 1 (one ) year
and to pay fine of Rs.1,00,000/- (one lakh) in default to
undergo rigorous imprisonment for 3 (three) months under
Section 8(1) r/w 8(2) of the Abkari Act.
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5. The appellate court confirmed the sentence .
6. Impugning the judgment of the learned Additional
Sessions Judge, Thodupuzha, the accused preferred this
revision.
7. Before the trial court, PWs.1 to 5 were examined,
Exts.P1 to P9 were marked and MO.1 was identified. PW1 is
the Excise Inspector, who detected the offence. PW2 is the
Preventive Officer who accompanied PW1. PWs 3 and 4 are
the independent witnesses. PW5 is the Excise Inspector, who
conducted the investigation and filed final report before the
Magistrate having jurisdiction.
8. After the closure of the prosecution evidence, the
accused was questioned under Section 313(1)(b) of the Code
of Criminal Procedure.
9. I have heard Adv. Ranjit George, the learned Public
Prosecutor and Adv.C.V.Manuvilsan, learned counsel
appearing for the revision petitioner.
10. The learned Public Prosecutor submitted that the
impugned judgment is legally sustainable and no interference,
whatsoever, is warranted in this matter. He further submitted
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that the prosecution has succeeded in alleging and proving
the charge against the revision petitioner.
11. Per contra, the learned counsel for the revision
petitioner submitted that the impugned judgment is illegal,
irregular and improper. Both the trial court and the appellate
court had failed to note the illegalities and improprieties in
this case.
12. The learned counsel further submitted that the
prosecution has failed to allege and prove the charge against
the accused beyond reasonable doubt. He submitted that the
penal statutes are to be interpreted strictly within the four
corners of the statute. Suspicion, however strong it may be, it
would not be a substitute for proof. The impugned judgment
is based on surmises and conjectures.
13. Before further discussion, it may be fruitful to
extract the relevant section:
"8. Prohibition of manufacture, import,
export, transport, transit, possession,
storage, sales, etc., of arrack. -
[(1) No person shall manufacture, import
export, transport without permit, possess,
store, distribute, bottle or sell arrack in any
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form.]
` [(2) If any person contravenes any
provisions of sub-section (1), he shall be
punishable with imprisonment for a term
which may extend to ten years and with
fine which shall not be less than one lakh.]"
14. I have heard the rival submission of the counsel
for the parties and perused the records.
15. The learned counsel for the revision petitioner has
mainly raised three submissions:
Firstly, Material contradiction between the evidence
of PW1 the Detecting Officer and PW2 the Accompanying
officer.
secondly, Ext.P5 forwarding note in this case does not
bear a date.
thirdly, the independent witnesses turned hostile to
the prosecution.
16. The learned counsel has relied on the decision of
this court in Sugathan @ Kunjankili v. State of Kerala
[2023 KHC OnLine 9345]. It held that:
"9. Yet another contention raised by the revision
petitioner is that a perusal of Ext P6 chemical analysis
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report would reveal that the sample was forwarded from
the Court as per letter No. T.R.329/2001 dated 19.10.2001,
but admittedly the same reached the chemical analysis
laboratory only on 28.10.2021. The forwarding note does
not contain the date on which the samples were forwarded
for chemical analysis.
X X X X XX X X X X X X X X X X X X X X X X X X X X X
This court in Jayakumar v. State of Kerala, 2018
(1) KLT SN 88 and Gnanaprakasham v. State of Kerala,
2021 (4) KLT OnLine 1089 has held that evidence
regarding the date on which the learned Magistrate sent
the sample to the laboratory and the date on which the
Excise Guard referred to in the forwarding note received
the sample from the court is very vital while looking for
assurance regarding the question whether the very same
sample allegedly drawn at the scene of occurrence reached
the hands of the Analyst in a tamper proof condition. In
such circumstances, the prosecution ought to have
examined the thondi clerk of the court or the guard who
had taken the sample to the analyst so as to prove the
tamper - proof despatch of the sample to the laboratory.
A similar view was taken by this court in
Kumaran v. State of Kerala, 2016 (4) KLT 718, paragraph
7 of the order reads as follows:
"7. There is yet another reason to grant benefit of doubt to
the revision petitioner, which is stated hereunder. Ext.P9 is
the copy of the forwarding note whereby the sample was
forwarded to the chemical examiner. The copy of the
forwarding note is silent with regard to the name of the
person with whom the sample was sent for analysis. Ext.P4
Certificate of chemical analysis would show that the sample
was received in the laboratory through the Excise Guard
Sri.Dinesan on 2.8.2007. It is not discernible as to why the
space meant for writing the name of the Excise Guard/
Preventive Officer, with whom the sample was sent,
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remained vacant in Ext.P9 copy of the forwarding note. This
would give an indication that even at the time when the
learned Magistrate put the initial in the copy of the
forwarding note, it was not decided as to with whom the
sample had to be sent to the laboratory for analysis. It is
also not discernible from Ext. P9 as to when the learned
Magistrate put the initial in the forwarding note. The
learned Magistrate ought to have written the date on which
the initial was made, which is normally expected in a case
like this. However, since the date was not written by the
learned Magistrate when the initial was made, it is not
clear from Ext.P9 as to how many days before the despatch
of the sample, the learned Magistrate put the initial in
Ext.P9. This becomes relevant, particularly when the space
meant for writing the name of the Excise Guard /
Preventive Officer with whom the sample was sent,
remained vacant in Ext.P9 copy of the forwarding note. In
such a situation, it was imperative for the prosecution to
examine the thondy clerk of the court or the Excise Guard
concerned to prove the tamper - proof despatch of the
sample to the laboratory. However, neither the thondy clerk
nor the Excise Guard through whom the sample was sent to
the laboratory was examined in this case to prove the
tamper - proof despatch of the sample to the laboratory and
consequently, the tamper - proof despatch of the sample to
the laboratory could not be established by the prosecution,
which is fatal to the prosecution. For the said reason also,
the revision petitioner is entitled to benefit of doubt. The
courts below did not consider the above vital aspects while
appreciating the evidence and consequently, the conviction
and sentence passed by the courts below cannot be
sustained."
In Krishnadas v. State of Kerala, 2019 KHC 191,
this court has held that the unexplained delay in between
sending the sample for chemical examination and the date
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on which the sample was received by the laboratory
concerned is a suspicious aspect, the benefit of which
should go to the accused.
10. Admittedly, though the forwarding letter from the court
is dated 19.10.2001, the sample reached the chemical
analysis laboratory only on 28.10.2021. The forwarding
note does not contain the date on which the sample was
forwarded for chemical analysis and also does not contain
the name of the Excise Guard through whom the samples
were sent to the chemical analysis laboratory. In view of the
same, there is no conclusive proof regarding the date of
despatch to the laboratory, and through whom the same
was sent to the laboratory. Therefore, in view of the said
factual circumstances and the decisions of this court cited
supra, it was incumbent on the part of the prosecution to
examine either the property clerk and the guard through
whom the sample was sent for chemical analysis so as to
prove the date of despatch of sample and also regarding
the safe custody of the samples till it was sent for chemical
analysis. Having not done so, the said lacuna is fatal to the
case of the prosecution.
11. 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."
17. In the instant case the Ext.P5 forwarding Note
does not bear a date. In Sugathan's case (supra) it was held
that if there is no conclusive proof as to the date of despatch
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of samples to the laboratory, it would be fatal to the
prosecution case. Such evidence is lacking in the instant
case. Moreover, these are material contradictory in the
evidence of PW1, the Detecting Officer and PW2, the
Accompanying Officer.
18. In the light of the above discussion, I am of the
considered opinion that the impugned order is liable to be set
aside. Both the trial court and the appellate court overlooked
serious illegalities which cuts the very root of the prosecution
story.
In the result,
(i) Criminal revision petition is allowed.
(ii) The impugned judgment is set aside.
(iii) The revision petitioner/accused is acquitted
and he is set at liberty.
(iv) The bail bond, if any, executed by the
revision petitioner stands cancelled.
(v) Fine, if any, paid by him shall be
refunded.
Sd/-
K. V. JAYAKUMAR
JUDGE
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