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2025 DIGILAW 566 (KER)

VASUDEVAN S/o. koran v. STATE OF KERALA

2025-03-12

K.V.JAYAKUMAR

body2025
ORDER : This criminal revision petition is preferred impugning the judgment of the learned Additional Sessions Judge, Fast Track No.II, Palakkad in Crl.A.No.446 of 2010. 2. The revision petitioners herein are accused Nos.1 and 2 in Crime No.43 of 2005 of Excise Range, Thrithala, registered for the offence punishable under Section 8 (1) r/w Section 8 (2) of the Abkari Act . 3. The prosecution case is that, on 09.12.2005 at about 6.00 p.m, the 1 st accused was found in possession of arrack in a Can having capacity of 5 litres and the 2 nd accused was found in possession of arrack in a plastic bottle having a capacity of 1½ litres on the northern side of pathway leading to Bharathapuzha Kadavu from Thrithala-Kumbidi Road in Koodallur and thereby allegedly committed the offence punishable under Section 8 (1) r/w Section 8 (2) of the Abkari Act . 4. The trial court convicted and sentenced the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- each and in default, to undergo simple imprisonment for three months. 5. The appellate court, as per the impugned judgment, confirmed the conviction and modified and reduced the sentence to rigorous imprisonment for six months each and the fine imposed by the court below was confirmed. The default sentence is reduced to two months each. 6. Impugning the judgment of the learned Additional Sessions Judge, Palakkad, the accused preferred this revision. 7. Before the trial court, PWs.1 to 5 were examined, Exts.P1 to P10 were marked. PW1 is the Excise Inspector who detected the case. PW2 and PW3 are independent witnesses, who turned hostile to the prosecution. PW4 is the Excise Circle Inspector and PW5 is the other occurrence witness. The trial court, after a full fledged trial, convicted and sentenced the accused as aforesaid. 8. I have heard Adv.C.Seena, the learned Public Prosecutor and Adv.P.K.Mohanan, learned counsel appearing for the revision petitioners. 9. The learned counsel for the revision petitioners has mainly argued three points. The first submission by the learned counsel for the revision petitioners is that, Ext.P3 seizure mahazar does not contain the specimen impression of the seal and it does not state the description of the personal seal of the Detective Officer. He invited the attention of this Court's decision in Sugathan @ Kunjankilli v. State of Kerala [ 2023 KHC OnLine 9345 ] . He invited the attention of this Court's decision in Sugathan @ Kunjankilli v. State of Kerala [ 2023 KHC OnLine 9345 ] . The relevant portion of Sugathan 's case (supra) which is extracted hereunder; “8. Learned counsel would further contend that no specimen seal is affixed in the mahazar or in the forwarding note. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. 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 and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In Nadarajan 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, 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 16 , Prakasan v. State of Kerala (2016 (1) KLT SN 96 (C.No.96), and Ramachandran v. State of Kerala, 2021 (1) KLT 793 . This court in Moothedath Sivadasan v. State of Kerala , 2021 (1) KLT 744 held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. This court in Moothedath Sivadasan v. State of Kerala , 2021 (1) KLT 744 held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. This court in Sasidharan v. State of Kerala, 2007 (1) KLT 720 has considered and emphasized 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 Court in State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 , this court in Sasidharan '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. A similar view was taken by this court in Udayan v. State of Kerala , 2023 (1) KLT 371 . 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.” 10. A similar view was taken by this court in Moothedath Sivadasan v. State of Kerala in Crl.R.P No.652/2014. Paragraph 12 of the above judgment reads as follows: “No specimen impression of seal is seen affixed on Ext.P1 seizure mahazar prepared by PW4. Further specimen impression of sample seal was not produced as an Exhibit in this case. Under the circumstances, it is very difficult to hold that the sample of the contraband allegedly seized from the accused has, in fact, reached the chemical examiner for analysis. It appears from Ext. P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml. Under the circumstances, it is very difficult to hold that the sample of the contraband allegedly seized from the accused has, in fact, reached the chemical examiner for analysis. It appears from Ext. P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml. of clear and colourless liquid alleged to be spirit involved in Crime No. 146/2000 of Iritty Police Station were received by the chemical examiner for chemical analysis. It is further stated in Ext. P8 that the seals on the bottles were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. There is nothing on record to indicate that the sample seal was affixed in Ext. P1 seizure mahazar. Thus, there is absolutely no evidence to establish that the prosecution has proved the sample seal or specimen impression of the seal alleged to have been affixed on the sample by PW4. In Rajamma v. State of Kerala ( 2014 (1) KLT 506 ), this Court held that in the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the accused.” 11. The learned counsel has also placed reliance on a decision in Viswambaran v. State of Kerala ( 2024 (2) KLT 22 ), Paragraphs 13 and 14 are extracted hereunder: “13. 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 was 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. 14. 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. 14. 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, PW3 has not deposed anything regarding the nature of the seal used by him. In cross-examination, PW3 would say that the property was entrusted to the Station House Officer for safe custody from the court and that he entrusted the said property to CW6. When CW6 was examined as PW5, he would say that MOs were in the custody of CW5, who is examined as PW3 in this case. As already stated in this case, the specimen impression of the seal is not affixed in the contemporaneous seizure mahazar and the property list prepared and further, the copy of the forwarding note is also not produced. Therefore, I find merit in the submission of the learned counsel for the appellant that there is ground to doubt the genuineness of the seizure of the contraband and the sample allegedly taken therefrom.” 12. The learned counsel for the revision petitioners has also placed reliance on Shijo Das v. State of Kerala in Cr.R.P. No.1287 of 2014 in support of her contention that the absence of a seal is a material illegality, which would cut the very root of the prosecution story. Paragraph 11 is extracted hereunder: “11. Absence of proper impression of specimen seal in the mahazar and absence of sample seal in the forwarding note etc. are circumstances to doubt the identity of the sample seized and the sample sent for chemical analysis. 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 prosecution failed to prove the same, we cannot say that the link evidence was established.” 13. The second submission by the learned counsel for the revision petitioners is that it is not stated in the seizure mahazar that the residue, after taking samples, were not properly sealed and labelled. Since prosecution failed to prove the same, we cannot say that the link evidence was established.” 13. The second submission by the learned counsel for the revision petitioners is that it is not stated in the seizure mahazar that the residue, after taking samples, were not properly sealed and labelled. The learned counsel also relied on the decision of this Court in Jinto v. State of Kerala [ 2023(7) KHC 613 ] . The learned counsel invited the attention of this Court to Paragraph 14 of the Jinto 's case which is extracted hereunder; “14. In Bhaskaran v. State of Kerala [ 2020 KHC 5296 : 2020 (5) KLT Online 1057] , this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the court to satisfy the genuineness of the sample produced in the court. Moreover, the detecting officer, who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the nature of the seal used shall be mentioned in the seizure mahazar also.” 14. The third submission by the learned counsel for the revision petitioners is that, according to the prosecution, the 1 st accused was pouring arrack from a Can to a plastic bottle. Samples were taken from the Jerry Can and also from the plastic bottle. If that be so, the Chemical Analysis Report would show that the samples taken should be exactly the same. But, as per the Chemical Analysis report, the samples taken from the Jerry Can and the bottle contained different percentage of alcohol contents. In one sample, it is 46.47 and in other sample, it is 46.57. The learned Public Prosecutor submits that the variation in the percentage of alcohol is so marginal and negligible and that is to be ignored. 15. It is trite law that the prosecution has to allege and prove the case beyond the reasonable doubt. The learned counsel for the revision petitioners submitted that the penal statutes are to be interpreted strictly within the four corners of the statute. In the instant case, the absence of seal in Ext.P3 seizure mahazar is one of the circumstances to doubt genuineness of the prosecution story. The learned counsel for the revision petitioners submitted that the penal statutes are to be interpreted strictly within the four corners of the statute. In the instant case, the absence of seal in Ext.P3 seizure mahazar is one of the circumstances to doubt genuineness of the prosecution story. So also, the absence of mentioning about the sealing and labelling in the residue is also yet another circumstances pointing out the absence of genuineness in the prosecution story. However, with regard to the contention that there is a slight change in the percentage of alcohol in the samples taken from the Jerry Can and the plastic bottles is so negligible and therefore, I do not find any force in that contention advanced by the learned counsel for the revision petitioners. 16. Upon hearing the submissions of the learned counsel for the revision petitioners and the learned Public Prosecutor, I am of the view that, the prosecution has failed to allege and prove the case beyond reasonable doubt and the absence of impression of specimen seal casts serious doubts in the prosecution story. 17. 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 cut 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 petitioners/accused are acquitted and they are set at liberty. (iv) The bail bond, if any, executed by the revision petitioners shall stand cancelled. (v) Fine, if any, paid by them shall be refunded.