Allowed

Gopalaswamy @ Rajan v. State of Kerala

Kerala HC18 Sept 2023Crl.Rev.Pet/250/2014

Case brief

AI extract

What is this about?

High Court allowed revision petitioner's appeal quashing conviction under Abkari Act. Court found absence of specimen seal on mahazar and unexplained delay in lab forwarding severed chain of evidence, benefiting the accused via doubt.

What did the court decide?

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

Gopalaswamy @ Rajan 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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MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945

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CRL.REV.PET NO. 250 OF 2014

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CRIME NO.7/2005 OF Agali Excise Range Office, Palakkad
AGAINST THE ORDER/JUDGMENT CRA 561/2010 OF III ADDITIONAL DISTRICT
COURT, PALAKKAD / II ADDITIONAL MACT, PALAKKAD
S.C. 559/2007 OF ASSISTANT SESSIONS COURT, OTTAPPALAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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GOPALASWAMY @ RAJAN
S/O.KANTHASWAMY, HOUSE NO.SP IV/425/03, KADAMPARA
MOOLAKKADA DESOM, SHOLAYUR VILLAGE, MANNARKAD
TALUK PALAKKAD DISTRICT
BY ADVS.
SRI.JACOB SEBASTIAN
SMT.SHAMSEERA. C.ASHRAF

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM REPRESENTING THE EXCISE
INSPECTOR OF POLICE, AGALI EXCISE RANGE.
BY P.P., SRI. RENJITH 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. 250 of 2014 :2:

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VIJU ABRAHAM , J.

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=========================== Crl.R.P. No. 250 of 2014 ============================ Dated this the 18^th day of September, 2023

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O R D E R

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The revision petitioner is the accused in S.C. No. 559 of 2007 alleging commission of offences punishable under Section 8(1) read with Section 8(2) of the Abkari Act.

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The prosecution allegation is that, on 02.02.2005 at about 01.30 pm at Sholayar in Mannarkkad Taluk, the accused was found in possession of 600ml of arrack in violation of Section 8(1) read with Section 8(2) of the Abkari Act.

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To prove the case of the prosecution, PWs 1 to 5 were examined and Exts P1 to P10 & MO1 were marked and on the side of the defence D1 to D3 were marked. The trial Court convicted the revision petitioner to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for another one month. The Court also granted set off from the period of imprisonment between 02.02.2005 to 22.02.2005. The appeal filed as Criminal Appeal No.561 of 2010 also ended up in dismissal upholding the conviction and sentence.

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The learned Counsel appearing for the revision

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Crl.R.P. No. 250 of 2014 :3:

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petitioner would contend that the prosecution could not prove the case beyond reasonable doubt. PWs 2 and 3 who are independent witnesses turned hostile and did not support the case of the prosecution. It is further contended that Ext P1 mahazar does not contain the specimen seal. The revision petitioner would further submit that a perusal of Ext P5 forwarding note shows that the samples were forwarded on 05.02.2005, and a perusal of Ext P10 chemical analysis report would show that the sample reached the chemical analysis laboratory only on 14.02.2005 and there is an unexplained delay of nine days which is fatal to the prosecution case.

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The learned Public Prosecutor would submit that there is sufficient evidence to prove the guilt of the accused and evidence of PWs 1, 4 and 5 are sufficient to prove the case of the prosecution and therefore, no interference is called for in this criminal revision petition.

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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

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Crl.R.P. No. 250 of 2014 :4:

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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

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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, in Ext P1 mahazar, the sample seal is not seen affixed. 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 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)

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Crl.R.P. No. 250 of 2014 :5:

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KLT 744. 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. 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 second ground raised is regarding the delay in forwarding the alleged contraband to the chemical analysis laboratory. The seal and date affixed by the Judicial 1^st Class Magistrate Court, Mannarkkad, in the forwarding note is 05.02.2005. A perusal of Ext P10 would show that the sample reached the chemical analysis laboratory only on 14.02.2005. The delay of almost 10 days is not sufficiently and properly explained by the prosecution. 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.

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Crl.R.P. No. 250 of 2014 :6:

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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.

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Sd/-

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VIJU ABRAHAM JUDGE

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sbk/-

Gopalaswamy @ Rajan v. State of Kerala

Case brief

What is this about?

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Gopalaswamy @ Rajan v. State of Kerala

Case brief

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