Allowed

Sasidharan v. State of Kerala

Kerala HC15 Sept 2023Crl.Rev.Pet/1262/2008

Case brief

AI extract

What is this about?

In this criminal revision petition challenging conviction under the Abkari Act, the High Court set aside the conviction and acquitted the accused. The court held that failure to produce arrest intimation, unexplained delay in producing seized articles, and lack of specimen seal on the mahazar and forwarding note rendered the prosecution case doubtful, absolving the accused of liability.

What did the court decide?

Revision petition allowed; conviction and sentence set aside; accused acquitted; bail bond cancelled; accused set at liberty forthwith.

Sasidharan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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FRIDAY, THE 15TH DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945

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CRL.REV.PET NO. 1262 OF 2008

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AGAINST THE JUDGMENT CC 762/1998 OF JUDICIAL MAGISTRATE OF FIRST
CLASS ,MATTANNUR

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CRA 620/2002 OF ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY

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REVISION PETITIONER/APPELLANT/ACCUSED:

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SASIDHARAN, S/O.RAJAN, AGED 46 YEARS
PADIAJARAYIL HOUSE, ARALAM AMSOM, VEERPAD.

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BY ADV SRI.C.P.PEETHAMBARAN

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA
REPRESENTED BY THE EXCISE INSPECTOR, MATTANNUR,
THROUGH PUBLIC PROSECUTOR,
HIHG COURT OF KERALA,ERNAKULAM.

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OTHER PRESENT:

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PP - RENJITH GEORGE

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
15.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.RP No.1262 of 2008

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VIJU ABRAHAM, J.

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Crl.R.P. No.1262 of 2008

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................................................................. Dated this the 15^th day of September, 2023

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ORDER

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The revision petitioner is the accused in C.C.No.762 of 1998 on the file of the Judicial First Class Magistrate Court, Mattannur who is the unsuccessful appellant in Crl.Appeal No.620 of 2002 on the file of the Additional Sessions Court, Thalassery.

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The prosecution case is that on 13.05.1997 at about 9.00 p.m. the accused was found to be in possession of 100 packets of Karnataka made arrack near Kiliyanthara Excise Check Post and thereby the accused has committed the offence punishable under Section 55(a) of the Abkari Act.

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Before the trial court the prosecution examined PW1 to PW5 and marked Exts.P1 to P5 and MO1 to MO3 in support of the prosecution case. Considering the evidence adduced the trial court convicted the accused and sentenced to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.25,000/- and in default of payment of fine, the accused was directed to undergo simple imprisonment for a further period of three months. It is also ordered that the accused is entitled to set off if any under Section 428 Cr.P.C. The appellate court dismissed the appeal confirming the conviction and sentence passed by the trial court.

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Crl.RP No.1262 of 2008

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In the revision petition, the petitioner has alleged that the order of conviction and sentence passed by the courts below are per se illegal, improper, arbitrary and contrary to the evidence adduced and that the prosecution failed to establish the seizure, sampling and production of the contraband articles before the competent court. It is alleged that the only independent witness PW3 has turned hostile and hence recovery itself is doubtful. It is further alleged that there is no arrest intimation nor any document has been produced to prove the same. The contention of the revision petitioner is that Ext.P1 mahazar does not contain the specimen seal and further that no forwarding note is produced to prove the case of the prosecution that the sample has been taken from the alleged contraband and that is sent for chemical analysis. It is further contended by the revision petitioner that though the seizure was on 13.05.1997 the thondi articles were produced before the trial court only on 19.05.1997 and there is a delay of almost six days which is not properly explained and the same goes against the prosecution case.

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The learned Public Prosecutor would submit that the fact that the independent witness PW3 has turned hostile is not material inasmuch as the official witnesses have given sufficient evidence to prove the guilt of the accused. Learned Public Prosecutor further submitted that the fine imposed by the trial court which is confirmed by the appellate court is proportionate to the offence committed by the accused and no interference is called for.

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Crl.RP No.1262 of 2008

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Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance of the statutory formalities specified in the Act. This court in Baburaj v. State of Kerala, 2021 (6) KLT 416 , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in Sathi v. State of Kerala, 2007 (1) KLT SN 57. In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt.

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The first contention raised by the revision petitioner is that there is no proper arrest intimation . In Ext.P2 arrest memo it is stated that one P.S.Saji has been entrusted to intimate the details of the arrest to the near relatives of the accused. But there is no evidence to show that the arrest has been intimated to the near relatives of the accused. Admittedly, no arrest intimation was produced by the prosecution. The Apex Court in D.K.Basu v. State of West Bengal (1997) 1 SCC 416 , has held that preparation of arrest memo is a mandatory requirement and that it should be countersigned by the arrestee and shall contain the time

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Crl.RP No.1262 of 2008

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and date of arrest. This court in Baburaj’ s case cited supra has held that the non-production of the arrest memo and arrest intimation will lead to an inference that the same was not prepared at the time of the alleged arrest. The prosecution case has been built upon the foundation that the accused was arrested while possessing the contraband substance and therefore the non-compliance of mandatory requirements regarding arrest makes the alleged arrest doubtful. A similar view was taken by this court in Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KLT SN 83 which held that non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore, the non-compliance of this mandatory requirement makes the prosecution case doubtful.

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Another contention raised by the revision petitioner is that though the alleged seizure of the contraband was on 13.05.1997, going by Ext.P4 property list it is seen that the alleged contraband was produced before the concerned Magistrate only on 19.05.1997. There is a delay of almost six days and the same has not been explained by any of the official witnesses. This court in Ramachandran v. State of Kerala (2021 (1) KLT 793 has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the

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Crl.RP No.1262 of 2008

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safe custody of the sample till its production before the court. Therefore, I am of the opinion that the said delay is fatal to the prosecution case.

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Another aspect to be considered is that Ext.P1 mahazar prepared does not contain the specimen seal. Likewise, the forwarding note is also not produced and marked to prove the prosecution case. 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. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. In Natarajan 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 (in the present case no forwarding note is marked), 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 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96) and in Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744. The Apex Court in Vijay Pandey v.

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Crl.RP No.1262 of 2008

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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. 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.

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The above vital aspects were not considered by the courts below while appreciating the evidence. In the said circumstance, the conviction and sentence passed by the courts below cannot be sustained.

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In the result, the above revision petition stand allowed, setting aside the conviction and sentence passed by the courts below against the revision petitioner/accused and he is acquitted of the charges. The bail bond of the revision petitioner/accused shall stand cancelled. He is set at liberty forthwith.

Sd/-

VIJU ABRAHAM

JUDGE

cks

Sasidharan v. State of Kerala

Case brief

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Sasidharan v. State of Kerala

Case brief

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