Allowed

Shibu Jacob and Another v. Sub Inspector of Police and Another

Kerala HC14 Nov 2023Crl.Rev.Pet/2335/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed a criminal revision petition, acquitting accused persons charged under the Kerala Abkari Act. The Court quashed the conviction due to unexplained delay in producing seized samples, lack of specimen seals, incompetent investigation by an Assistant Sub-Inspector, and gaps in chain of custody.

What did the court decide?

Revision petition allowed; conviction and sentence set aside; revision petitioners acquitted and released on bail.

Shibu Jacob and Another Vs Sub Inspector of Police and Another — Narcotics (NDPS) | 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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TUESDAY, THE 14^TH DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945

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CRL.REV.PET NO. 2335 OF 2009

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AGAINST THE ORDER/JUDGMENT CRA 81/2003 OF ADDITIONAL DISTRICT

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COURT (ADHOC)-III, THALASSERY

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CC 243/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS

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,TALIPARAMBA

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REVISION PETITIONER/APPELLANT/ACCUSED:

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1 SHIBU JACOB, S/O. JACOB, AGED 46 YEARS, SAIDUNGAR, TALIPARAMBA

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2 JOHNSON MATHEW, S/O MATHAI, AGED 46 YEARS, AYYAMALA, VELLAD, KANNUR DISTRICT

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BY ADV SRI.T.G.RAJENDRAN

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RESPONDENTS/COMPLAINANT & STATE:

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1 SUB INSPECTOR OF POLICE, TALIPARAMBA POLICE STATION

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2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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OTHER PRESENT:

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PP - M.C.ASHI

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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‘CR’

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CRL. R.P. No.2335 of 2009

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VIJU ABRAHAM, J.

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- - - - CRL. R.P. No.2335 of 2009

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- - - - Dated this the 14^th day of November, 2023

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ORDER

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The revision petitioners herein are the accused in C.C. No. 243 of

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1997 on the file of the Judicial Ist Class Magistrate, Thaliparamba, alleging commission of offences punishable under Rule 6 of the Kerala Rectified Spirit Rules r/w Section 55(a) of the Kerala Abkari Act.

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The prosecution allegation in short is that, on 12.08.1996 the revision petitioners/accused stored rectified spirit in 20 plastic barrels and 4 plastic cans in the house bearing No. AP II 557(A) of Maniyur amsom Poovan desom and thereby committed the alleged offences.

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The prosecution in support of their case examined PWs 1 to 10

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and Exts. P1 to P7 were marked. The trial Court found the accused guilty and convicted them to undergo simple imprisonment for a period of two years and to pay a fine of Rs.25,000/- each and in default of

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payment of the fine, to undergo simple imprisonment for a further period of six months.

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Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.81 of 2003 before the Sessions Court, Thalassery, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld.

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The learned counsel for the revision petitioners raised various contentions assailing the order of conviction and sentence imposed by the Court below. Ext.P1 is the search list in which the details of the seized alleged contraband and sample is mentioned and a perusal of the same would reveal that though the occurrence was on 12.08.1996, the same was produced before the court only on 14.08.1996 and there is a delay of two days, which is not explained. It is further contended that in Ext.P1, no specimen seal is seen affixed. It is also contended that the forwarding note is not seen marked in the trial. It is also deposed that though the detection was done by the Circle Inspector of Police and charge was laid by the Sub-Inspector of Police, the investigation was done by an Assistant Sub-Inspector of Police, who

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gave evidence as PW10. It is also admitted that the Assistant SubInspector of Police attached to Thalipparambu Police Station took over the investigation and on 13.08.1996 he prepared the scene mahazar and he questioned the witnesses and recorded their statement. It is seen that the investigation is done by the Assistant Sub-Inspector of Police. The revision petitioners relying on S.R.O.No. 321/1996, submitted that the Assistant Sub Inspector of Police is incompetent to conduct investigation of the case. In support of the contention, the revision petitioners rely on the judgment in Crl. Appeal No. 1077/2005 dated 21.08.2015 and also the judgment of the Apex Court in Sabu v.

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State of Kerala [2007 (4) KLT 169].

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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 with the statutory formalities mandated as per the Abkari 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

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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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Admittedly, properties were seized and sample was drawn as evident from Ext P1 search list and a perusal of the same would reveal that though the occurrence was on 12.08.1996, the same was produced before the court only on 14.08.1996 and there is a delay of two days, which is not explained. This court in Ramachandran v. State of Kerala [2021 (1) KLT 793] has held that unexplained delay in producing the contraband and sample before the court 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 safe custody of the sample till its production

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before the court. In Vikraman v. State of Kerala, [2018 KHC 3177] it was held that when there is no proper explanation for the delay, the possibility of tampering with the properties during the said period cannot be ruled out. In Chandran @ Chandrashekaharan v. State [2016 (5) KHC 650] this Court has held in paragraph 11 as follows:

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“11. It is also to be noted that even though the contraband article was seized on 7.1.2006, the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is only for one day, particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence

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regarding the safe custody of the sample till its production before the court.”

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Hence, I am of the opinion that the above-mentioned unexplained delay is

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fatal to the case of the prosecution.

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Yet another contention raised by the revision petitioners is that in Ext.P1, no specimen seal is seen affixed. It is also contended that the forwarding note is not seen marked. 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. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. 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

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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 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 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 (in the present case no forwarding note is produced and 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)], Joseph v. State of Kerala [2009 (4) KHC 537] , Ajayakumar v. State of Kerala [2021 KHC 3872] , Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Faijas v. State of Kerala [2020 KHC 5259] and Ramachandran v. State of Kerala, [2021 (1) KLT 739]. This court in Moothedath Sivadasan v. State of Kerala, [2021 (1) KLT 744] has held that since no specimen impression of seal is seen affixed in the

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seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached

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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 Sasidharn ’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

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with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioners are entitled to the benefit of doubt.

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Further contention raised by the revision petitioners is that the investigation was done by an Assistant Sub-Inspector of Police, who gave evidence as PW10. It is also admitted that the Assistant Sub-Inspector of Police attached to Thaliparambu Police Station took over the investigation and on 13.08.1996 he prepared the scene mahazar and he questioned the witnesses and recorded their statement. It is contended that the Assistant Sub-Inspector of Police is incompetent to conduct the investigation. Petitioners rely on S.R.O.No.321/96 which reads as follows:

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S.R.O.No.321/96.- In exercise of the powers conferred by section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in

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the sections aforesaid. (This notification shall come into force with immediate effect (GO (P) No. 69/96/TD dt. 29-3-1996)

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The said Government Order empowers all Police officers of and above the

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rank of Sub-Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers for exercising jurisdiction for the purpose of various Sections mentioned therein. In view of the same, it is contended that the Assistant Sub-Inspector of Police has no power or authorisation to conduct investigation of the case. This court in Sabu’s case cited supra has held as follows:

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9. Yet another point to be considered is regarding the contention of the learned counsel appearing for the appellant that PW.3 being an Assistant Sub Inspector of Police during the relevant time was not an authorized officer to detect or investigate the offence under the provisions of the Abkari Act. As per S.4 of the Abkari Act the Government of Kerala is empowered to authorize an officer of the State to detect or investigate an offence contemplated under the provisions of the Abkari Act. Sub-s.(2) of S.3 of the Abkari Act defines an Abkari Officer as follows: “Abkari Officer:- ‘Abkari Officer’ means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers

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under Ss. 4 or 5.”

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10. The Government of Kerala had notified that all police officers above the rank of Sub Inspector of Police is empowered to discharge all the duties conferred on an Abkari Officer. In this context, learned counsel for the appellant brought to the notice of this Court G.O. (P)No.69/967TD dated 29.3.1996 (S.R.O. No.321/96). The said notification reads as follows: “In exercise of the powers conferred by S.4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Ss.31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.”

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11. In the light of the above provisions, this Court is of the view that the learned counsel appearing for the appellant was justified in taking the contention that PW.3 was not empowered to detect or investigate the offence. If so, the evidence of PW.3 corroborated by the evidence of PWs.4 and 5 would not prove any case against the appellant. PW.3 had not stated before the

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Court below that he was in charge of the police station and hence he was empowered to investigate the crime. Even if he was empowered as per the provisions of S.2(o) Cr.P.C., he cannot exercise the power conferred on an Abkari Officer. On this score also, the judgment of the Trial Court has to be set aside.

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(underline supplied)

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The said decision is followed in Crl. Appeal No. 1077/2005. Paragraph 13 of the judgment reads as follows:

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13. On a close reading of the Government Order issued u/s.5 of the Abkari Act, it is found that an investigation can be conducted by the Abkari Officer or the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collector to be Abkari Officers under their respective jurisdiction to exercise the powers and to exercise all the powers and to discharge all the duties conferred to Abkari Officers for Section mentioned in the Government Order. There was no investigation by an authorised officer in this case and the real investigation was conducted by an Assistant Sub Inspector, who was never authorised.

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In view of the same, I am of the opinion that the investigation in the present

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case has been done by an an officer not empowered to investigate the

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offence.

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The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioners/accused. Therefore, the conviction and sentence imposed by the courts below 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 petitioners/accused is acquitted of the charges levelled against them. The bail bond shall stand cancelled and they are set at liberty.

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Needless to say, if the revision petitioners/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioners in accordance with the law.

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Sd/- VIJU ABRAHAM JUDGE

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sm/

Shibu Jacob and Another v. Sub Inspector of Police and Another

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Shibu Jacob and Another v. Sub Inspector of Police and Another

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