Allowed

Baby v. State of Kerala

Kerala HC20 Sept 2023Crl.Rev.Pet/3494/2009

Case brief

AI extract

What is this about?

High Court allowed Criminal Revision Petition in abkari offence. Holding that absence of specimen seal on seizure mahazar and lack of forwarded note created fatal legal pitfalls. Conviction set aside, accused acquitted, and bail bond cancelled due to failure to establish link between seized and tested samples.

What did the court decide?

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

Baby Vs State of Kerala — 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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WEDNESDAY, THE 20^TH DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945 CRL.REV.PET NO. 3494 OF 2009

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AGAINST THE ORDER/JUDGMENT in SC 353/2006 OF ASST. SESSIONS JUDGE, CHENGANNUR CR.APPEAL NO.8/2009 OF ADDITIONAL SESSIONS JUDGE -I, MAVELIKKARA

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REVISION PETITIONER/APPELLANT/ACCUSED:

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BABY, S/O VARGHESE, AGED 53 YEARS,

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MALEL VEEDU, THURITHUMMEL MURI,

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CHERIYANDU VILLAGE,CHENGANNUR TALUK, ALAPPUZHA DIST.

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BY ADV SRI.B.RENJITHKUMAR

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.

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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 20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL. R.P. No.3494 of 2009

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: 2 :

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VIJU ABRAHAM, J.

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- - - - CRL. R.P. No.3494 of 2009

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- - - - Dated this the 20^th day of September, 2023

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ORDER

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The revision petitioner is the accused in SC No.353/2006 on the file of Assistant Sessions Judge, Chengannur for the offence punishable under Section 8(1)(2) of the Abkari Act.

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The prosecution case in brief is that, on 01.10.2003 at about 6 pm, the petitioner transported arrack in a plastic bottle having a capacity of 1½ litres through Thuruthummel - Kulikkampalam road in Cheriyanadu Village and thus committed the offence.

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On the side of the prosecution PWs 1 to 6 were examined and marked Exts.P1 to P8 and MO1. The trial court convicted the accused and sentenced to undergo rigorous imprisonment for a period of 4 months and imposed a fine of Rs. 1 Lakh and on default of payment of fine, to undergo simple imprisonment for a period of 3 months. Though appeal was preferred as Crl. Appeal No.8 of 2009, before the Addl. Sessions Judge I, Mavelikara, the same was dismissed without interfering with the conviction and sentence awarded by the trial court.

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CRL. R.P. No.3494 of 2009

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: 3 :

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In this revision petition, the petitioner has raised the following contentions:

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In Ext. P2 Mahazar, no specimen seal is seen affixed. It is the further contention that the forwarding note by which the samples were forwarded to the chemical analysis laboratory is not produced and marked. In view of these glaring lacunas in the prosecution of the case, the revision petitioner would contend that the prosecution failed to establish the case against him beyond reasonable doubt.

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Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor.

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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 Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the

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CRL. R.P. No.3494 of 2009 : 4 :

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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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Ext.P2 is the mahazar dated 01.10.2003. No specimen seal is seen affixed on Ext P2 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. This court

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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 (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

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CRL. R.P. No.3494 of 2009 : 5 :

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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. 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 court 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

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CRL. R.P. No.3494 of 2009 : 6 :

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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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Needless to say, if the revision petitioner/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 petitioner in accordance with the law.

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Sd/- VIJU ABRAHAM JUDGE

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sm/

Baby v. State of Kerala

Case brief

What is this about?

What did the court decide?

Baby v. State of Kerala

Case brief

What is this about?

What did the court decide?

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