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2024 DIGILAW 1298 (KER)

Anil Varghese, S/o. Varughese v. State Of Kerala

2024-10-14

JOHNSON JOHN

body2024
ORDER : The revision petitioner is challenging the judgment rendered by the Additional District and Sessions Judge (Adhoc)- I, Pathanamthitta in Crl. Appeal No. 98 of 2012 upholding the verdict of the Assistant Sessions Judge, Thiruvalla in S.C. No. 59 of 2011, wherein the petitioner is convicted and sentenced for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act. 2. The prosecution case is that the petitioner, along with the second accused, was found in possession of 5 litres of arrack in a 10 litre can for the purpose of sale near M.J Plywood factory near Venkotta-Kunnathanam road at about 6 p.m. on 01.06.2006. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari Act. The accused pleaded not guilty and the prosecution examined PWs 1 to 7 and marked Exhibits P1 to P10 and MOs 1 to 4 series. From the side of the accused, DW1 examined and Exhibit D1 marked. 4. After trial and hearing both sides, the trial court found the accused guilty of the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months. 5. The accused filed Crl. Appeal No. 98 of 2012 before the Court of Sessions, Pathanamthitta. The appellate court confirmed the conviction, but, reduced the sentence to rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months. Aggrieved by the findings of the trial court and the appellate court, the accused filed this revision petition. 6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor and perused the records. 7. The learned counsel for the revision petitioner argued that PW2, Excise Circle Inspector who detected the case and prepared the mahazar, failed to affix the specimen impression of the seal used in the contemporaneous mahazar, property list and in the forwarding note. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor and perused the records. 7. The learned counsel for the revision petitioner argued that PW2, Excise Circle Inspector who detected the case and prepared the mahazar, failed to affix the specimen impression of the seal used in the contemporaneous mahazar, property list and in the forwarding note. PW2 has also not deposed regarding the nature of the seal affixed on the bottle containing the sample and the can containing the remaining liquor and in this case, there is no evidence as to how and when the sample was produced before the court. The sample said to be taken by PW2 at the time of occurrence is not among the properties produced as per Exhibit P6, property list, and therefore, there is no assurance that the very same sample drawn at the spot of the occurrence by PW2 was forwarded for analysis. 8. PW2, Circle Inspector who detected the case, has given evidence regarding the occurrence in accordance with Exhibit P1 mahazar. PW1 is an Excise Inspector who was present along with PW2 and his evidence also corroborates the evidence of PW2 regarding the occurrence. PWs 3 and 4 are independent witnesses examined from the side of the prosecution. But, they turned hostile to the prosecution and deposed that they have not witnessed the occurrence. 9. PW5 was the Excise Range Inspector of Mallappally who registered Exhibit P4 crime and occurrence report. The evidence of PW5 shows that he also prepared Exhibit P6, property list, and Exhibit P7, forwarding note. The chemical analysis report is marked as Exhibit P8 and it shows that ethyl alcohol was detected in the sample. 10. PW6 was the Excise Range Inspector of Mallapally who completed the investigation and filed the final report. The property clerk of the Judicial First Class Magistrate Court, Thiruvalla is examined as PW7 and the certified copy of the entry in the property register is marked as Exhibit P9. 11. PW7 admitted that the sample in Excise Crime No. 15 of 2006 of Mallapally is not mentioned in Exhibit P9. But, he would say that usually the sample will be produced along with the forwarding note and in this case, the sample is forwarded for analysis and the signature of the Excise Guard, Stephen, is there in the register for receiving the sample. 12. But, he would say that usually the sample will be produced along with the forwarding note and in this case, the sample is forwarded for analysis and the signature of the Excise Guard, Stephen, is there in the register for receiving the sample. 12. The learned counsel for the revision petitioner pointed out that as per Exhibit P1 mahazar, the detecting officer has taken 200 ml. of arrack as sample in a 375 ml. bottle. But, the said item is not among the properties produced before the court as per Exhibit P6 property list and there is also no entry regarding the sample in Exhibit P9, certified copy of the property register. 13. The learned counsel for the revision petitioner also invited my attention to Exhibit P7, copy of the forwarding note, to point out that in column No.4, it is not stated that the sample is sealed and labelled and further, the sample seal is also not seen affixed in column No. 10 of Exhibit P7. 14. In Sasidharan v. State of Kerala [ 2007 (1)KLT 720 = 2007 KHC 3404], this Court held that the prosecution has 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. 15. In Moothedath Sivadasan v. State of Kerala [ 2021 (1) KLT 744 =2021 KHC 3232], this Court held that when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it is difficult to hold that, the sample which reached the chemical examiner’s lab was the sample taken from the contraband allegedly seized from the possession of the accused. 16. It is well settled that the specimen of the seal used is required to be affixed in the contemporaneous mahazar, property list and in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. Further, the detecting officer has also a duty to depose regarding the nature of the seal affixed on the bottle containing the sample and the can containing the remaining liquor and in this case, PW2 has not deposed anything regarding the nature of the seal used by him. 17. Further, the detecting officer has also a duty to depose regarding the nature of the seal affixed on the bottle containing the sample and the can containing the remaining liquor and in this case, PW2 has not deposed anything regarding the nature of the seal used by him. 17. The description of the articles given in Exhibit P6, property list, does not show that the sample bottle was produced before the court along with the other items on 02.06.2006. In this case, there is no satisfactory evidence as to how and when the sample bottle was produced before the court. Therefore, there is no assurance that the very same sample drawn at the spot of the occurrence by PW2 was produced in the court and that the very same sample was forwarded for analysis. 18. As noticed earlier, it is not mentioned in Exhibit P7, copy of the forwarding note, that the sample is sealed and labelled and further, the specimen impression of the seal is also not affixed in the forwarding note. 19. In Prakasan v. State of Kerala [ 2016 (1) KLD 311 ], this Court has held as follows: “Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused”. 20. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused”. 20. It is well settled that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related, as held by the Honourable Supreme Court in Vijay Pandey v. State of Uttar Pradesh [ AIR 2019 SC 3569 )]. 21. In this case, the trial court as well as the appellate court has not properly considered the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. In the result, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) r/w 8(2) of the Kerala Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him.