Allowed

Krishnadasan v. State of Kerala

Kerala HC18 Sept 2023Crl.Rev.Pet/1376/2006

Case brief

AI extract

What is this about?

The High Court of Kerala acquitted the accused of offences under the Abkari Act, allowing a criminal revision petition. The court held that the absence of a specimen seal on the seizure mahazar and the non-production of the seal as evidence created a fatal lacuna, failing to link the seized contraband to the analyzed sample.

What did the court decide?

Conviction and sentence set aside. Revision petitioner acquitted. Bail bond cancelled and accused set at liberty.

Krishnadasan Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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Crl.R.P.No.1376 of 2006 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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MONDAY, THE 18^TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945

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CRL.REV.PET NO. 1376 OF 2006

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AGAINST THE JUDGMENT IN CRL.A.NO.519/04 DATED 27.12.05 PASSED BY THE COURT OF ADDL. DISTRICT & SESSIONS JUDGE FAST TRACK (ADHOC II), KOZHIKODE AND IN SC 415/2001 PASSED BY THE ASST. SESSIONS COURT, KOZHIKODE DIVISION

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REVISION PETITIONER/APPELLANT/ACCUSED:

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KRISHNADASAN, 43 YEARS, S/O.KANDANKUTTY, HOUSE KENGASSERY, CHERUKULATHUR AMSOM, MUNDAKKAL DESOM, KOZHIKODE DISTRICT.

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BY ADV SRI.TOMY JOHN VETTATH

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RESPONDENT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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OTHER PRESENT:

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PP - RENJIT GEORGE

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P.No.1376 of 2006 2

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VIJU ABRAHAM,J

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Crl.R.P.No.1376 of 2006

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Dated this the 18^th day of September, 2023

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ORDER

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The revision petitioner is the accused in SC

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No.415 of 2001 on the file of the Principal Asst. Sessions Judge, Kozhikode alleging commission of offence punishable under Sections 55(a) and 8(1) of the Abkari Act.

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The prosecution case is that on 21.4.1998 at

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about 6.15 p.m., the accused was found to be in possession of 5 litres of illicit arrack in a can in the vicinity of Agro Clinic at Poovattuparamba in Cherukulathur Amsom and thereby committed the

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offence punishable under Sections 55(a) and 8(1) of the Abkari Act.

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To prove the case of the prosecution PWs.1 to

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6 were examined and proved Exts.P1 to P7 and MO1.

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The trial court on consideration of the

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evidence adduced found that the accused is guilty of

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the charges levelled against him and accused was

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convicted and sentenced to undergo simple

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imprisonment for 3 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to

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Crl.R.P.No.1376 of 2006 3

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undergo simple imprisonment for a further period of 6 months. The trial court has also allowed set off.

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Aggrieved by the said conviction and sentence,

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the revision petitioner filed an appeal as Crl.Appeal No.519 of 2004 before the Additional District and Sessions Judge, (Fast Track (AdhocII),Kozhikode, and the appellate court upheld the conviction and sentence passed by the trial court.

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The learned counsel appearing for the

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petitioner submits that no sufficient evidence was

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adduced by the prosecution to prove the guilt of the accused. PW3 and PW4 who are independent witnesses examined to prove the prosecution case, turned hostile. Further contention raised by the petitioner is that no sample seal is seen affixed in Ext P2 mahazar.

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A perusal of Ext.P2 mahazar would show that there is no specimen seal affixed on the same. 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,

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Crl.R.P.No.1376 of 2006 4

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sample bottle, bottle containing the remaining part of the contraband and the forwarding note. In

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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, 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 Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744. Paragraph 12 of the said judgment reads as follows:

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12 . 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. 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

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Crl.R.P.No.1376 of 2006 5

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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.

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The Apex Court in Vijay Pandey v. State of U.P.,

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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. A conviction cannot be entered against the accused in a prosecution like the present one unless it is proved that the sample which is analysed by the chemical examiner was the very same sample drawn from the liquid seized from

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the possession of the accused. In the said

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Crl.R.P.No.1376 of 2006 6

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circumstances, the revision petitioner is entitled

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to the benefit of doubt.

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Both the trial court and appellate court did

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not consider the above legal aspects and therefore

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the conviction and sentence imposed cannot be sustained.

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

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sd/-

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VIJU ABRAHAM, JUDGE

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Krishnadasan v. State of Kerala

Case brief

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Krishnadasan v. State of Kerala

Case brief

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