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2025 DIGILAW 530 (KER)

Raju S/o. john v. State Of Kerala

2025-03-10

K.V.JAYAKUMAR

body2025
ORDER : K. V. JAYAKUMAR, J. This criminal revision petition is preferred impugning the judgment of the learned Additional Sessions Judge, Irinjalakuda in Crl.A.No.332 of2008. 2. The revision petitioner herein is the sole accused in Crime and Occurrence Report No.8 of 2004 of Excise Range, Irinjalakuda registered for offences punishable under Sections 8(1) and 8(2) of the Abkari Act. 3. The prosecution case is that, on 26.01.2004 at about 6.15 p.m., while PW1-Preventive Officer of Excise Range, Irinjalakuda was conducting patrol duty at Chelakottukara bridge, the revision petitioner was found to be carrying 3 litres of arrack in a black can. He was also carrying a glass. PW1 detected the case and arrested the accused. 4. The trial court convicted and sentenced the accused to undergo simple imprisonment for one year and to pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for three months. 5. The appellate court confirmed the conviction, but modified the sentence. 6. Impugning the judgment of the learned Additional Sessions Judge, Irinjalakkuda, the accused preferred this revision. 7. Before the trial court, PWs.1 to 5 were examined, Exts.P1 to P10 were marked and MOs.1 to 3 were identified. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. 8. I have heard Adv.Ranjith George, the learned Public Prosecutor and Adv.S.Indu, learned counsel appearing for the revision petitioner. 9. The main contention of the revision petitioner/accused is that, Ext.P7 forwarding note did not contain the name of the Guard to whom it was entrusted for forwarding it to the Chemical Analyst. Moreover, there is a delay of about one month in forwarding the material objects to the Chemical Analyst from the court. The said delay of one month is not explained by the prosecution. It is further submitted that the Excise Guard, who took the samples to the Analyst was neither mentioned nor the said Guard was not examined by the prosecution and thereby the prosecution has failed to prove that the very same sample taken from the accused was forwarded to the Chemical Analyst. In the absence of such evidence, the prosecution has failed to prove their case beyond reasonable doubt. In the absence of such evidence, the prosecution has failed to prove their case beyond reasonable doubt. It is further submitted that, the Thondi Clerk who kept the articles in the court for about one month was also not examined by the prosecution to ensure that the articles were kept in the proper custody. 10. The next submission by Adv.Indu, learned counsel for the revision petitioner is that, PW5- independent witness, turned hostile to the prosecution. The learned counsel has placed reliance on the decision in Sugathan @ Kunjankilli v. State of Kerala [2023 KHC OnLine 9345] and submitted that, non-examination of the Thondi Clerk, through whom the sample was sent to the Chemical Analyst and the name of the Guard to whom it was entrusted for forwarding it to the Chemical Analyst, are fatal to the case of the prosecution. The learned counsel for the revision petitioner invited the attention of this Court to Paragraph 9 of the Sugathan 's case which is extracted hereunder; “ 9. Yet another contention raised by the revision petitioner is that a perusal of Ext.P6 chemical analysis 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. The learned Counsel for the revision petitioner would also contend that the forwarding note does not contain the name of the guard through whom the samples were sent for chemical examination. Therefore, it is contended that it was incumbent on the part of the prosecution to examine either the property clerk or the person through whom the contraband was sent for examination to the chemical analysis laboratory, having not done so, it is fatal to the case of the prosecution. This court in Vijayan 's case cited supra 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 thondy clerk must be examined to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding. This court in Jayakumar v. State of Kerala, 2018 (1) KLT SN 65 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, 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. 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 on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused.” The learned counsel has also placed reliance on the decision in Girish v. State of Kerala [2023(7) KHC 435] . Paragraph 17 of Girish 's case (supra) is extracted hereunder; "17. The absence of impression of specimen seal in the mahazar and property list and non disclosure of the name of the Police Constable in the forwarding note and the delay in producing the sample before the Chemical Examiner’s Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. The absence of impression of specimen seal in the mahazar and property list and non disclosure of the name of the Police Constable in the forwarding note and the delay in producing the sample before the Chemical Examiner’s Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. It cannot be disputed that the prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused was the sample which reached the hands of the Chemical Examiner. Since the prosecution failed to prove the same, it cannot be held that the link evidence was established.” 11. The learned counsel for the revision petitioner submitted that, the prosecution has failed to allege and prove the charge against the accused beyond reasonable doubt. The failure to mention the name of the Guard who took the samples to the Chemical Analyst and non-examination of the Thondi Clerk who kept the samples for about one month are fatal to the prosecution case. The prosecution has failed to allege and prove the charge against the accused beyond reasonable doubt. Adv.Indu submitted that the penal statutes are to be interpreted strictly within the four corners of the statute. Mere suspicion, however strong it may be, it would not be considered as a substitute for proof. 12. The unexplained delay of one month in forwarding the sample to the Chemical Analyst and non-examination of the Thondi Clerk and Excise Guard, who purportedly forwarded the articles to the court, are fatal to the prosecution. Both the trial court and the appellate court have failed to consider all these material illegalities, irregularities and improprieties. In other words, they have omitted these vital aspects. In the light of the above, the accused is entitled to get the benefit of doubt. 13. 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. 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.S