Prasannan @ Kunjumon Vs the State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

THURSDAY, THE 21ST DAY OF SEPTEMBER 2023/30TH BHADRA, 1945

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CRL.REV.PET NO.811 OF 2007

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AGAINST THE JUDGMENT DATED 19.10.2006 IN CRL.APPEAL
NO.26/1999 OF ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST
TRACK COURT-I, THIRUVANANTHAPURAM
C.C.NO.1051/1996 OF THE JUDICIAL MAGISTRATE OF FIRST
CLASS -II, ATTINGAL

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REVISION PETITIONER/APPELLANT/ACCUSED NO.1:

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PRASANNAN @ KUNJUMON
S/O.GOPINATHAN, VALIYAVILA VEEDU,
KODUVAZHANOOR DESOM, KODUVAZHANOOR VILLAGE,
CHIRAYINKEEZH TALUK.

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BY ADVS.
SRI.M.RAJAGOPALAN NAIR
SRI.G.BIJU

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RESPONDENT/RESPONDENT/COMPLAINANT:

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

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BYSRI.M.C.ASHI, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.09.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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Crl.R.P.No.811 of 2007

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2

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VIJU ABRAHAM J.

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Crl.R.P.No.811 of 2007

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--------------------------------------------
Dated this the 21st day of September, 2023

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J UDGMENT

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Revision petitioner is the first accused in
C.C.No.1051 of 1996 on the file of the Judicial
First Class Magistrate Court-II, Attingal alleging
commission of offence punishable under Section
55(a) of the Abkari Act.

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2. The prosecution case is that on 08.11.1996
at 6 p.m, the petitioner was found to be in
possession of 4 litres of arrack in a plastic can
at Poikakada Market Junction in Koduvazhanoor
Village and that he was in possession of the same
in violation of the Abkari Act.

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3. To prove the prosecution case, PWs.1 to 4

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Crl.R.P.No.811 of 2007 3

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were examined and marked Exts.P1 to P3 and
MOs.1 & 2.

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3. PW1 is the Excise Circle Inspector, who
detected the offence, PW2 is the Excise Inspector,
Attingal, who was on patrol duty along with PW1,
PW3 is the attestor to mahazar, who turned hostile
to the prosecution and PW4 is the Excise
Inspector, Chirayinkeezh Range, who laid charge
before Court.

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4. The 2nd accused was found not guilty and he
was acquitted and the trial Court found the 1st
accused, who is the revision petitioner herein,
guilty of the charges levelled against him and
convicted and sentenced to undergo simple
imprisonment for one year and to pay a fine of
Rs.15,000/- and in default of payment of fine, to
undergo simple imprisonment for a further period
of three months.

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Crl.R.P.No.811 of 2007 4

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5. Aggrieved by the said conviction and
sentence, the revision petitioner filed an appeal
as Crl.Appeal No.26 of 1999 before the Additional
District & Sessions Judge [Fast Track Court-I],
Thiruvananthapuram and the Appellate Court
dismissed the appeal confirming the conviction and
sentence imposed by the Lower Court.

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6. The occurrence was on 08.11.1996, going by

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the seal affixed by the learned Magistrate in
Ext.P1 mahazar, the same was received only on
11.11.1996. Further that, no property list is seen
produced and marked before the trial Court. In
Ext.P1 mahazar, there is no specimen seal affixed
and further that the forwarding note, whereby the
alleged contraband was forwarded to the Chemical
Analyst Laboratory is not produced and marked. The
contention of the learned counsel for the revision
petitioner is that in the absence of the seal in

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Crl.R.P.No.811 of 2007 5

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Ext.P1 mahazar and the non-production of
forwarding note, it cannot be conclusively said
that the sample, which was drawn from the alleged
contraband seized, has reached the chemical
examiner in a tamper proof condition.

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7. 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

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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.811 of 2007 6

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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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8. The occurrence was on 08.11.1996 and going
by the seal affixed by the learned Magistrate in
Ext P1 mahazar, the same was received only on
11.11.1996 and there is an unexplained delay of

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almost 4 days. Further, no property list is seen
produced and marked. 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

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Crl.R.P.No.811 of 2007 7

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evidence with regard to the safe custody of the
sample till its production before the Court. The
non-production of the property list before the
trial Court will also be fatal to the prosecution
case.

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9. A perusal of Ext P1 mahazar would reveal
that no specimen seal is affixed on the same and
further that the forwarding note 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 containing the remaining
part of the contraband and the forwarding note.
In the present case, the forwarding note by which

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Crl.R.P.No.811 of 2007 8

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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. State
of U.P., AIR 2019 SC 3569 has held that mere

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Crl.R.P.No.811 of 2007 9

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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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10. 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

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Crl.R.P.No.811 of 2007 10

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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

sp/21/09/2023

Prasannan @ Kunjumon v. the State of Kerala

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Prasannan @ Kunjumon v. the State of Kerala

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