George Kutty vs State Of Kerala

Viju Abraham,J

The revision petitioner is the accused in C.C.No.907 of 1997 on the file of the Judicial First Class Magistrate Court, Adoor alleging commission of offences punishable under Sections 55(a), 55(i) and 64-A of the Abkari Act.

The prosecution allegation is that, contravening the provisions of Abkari Act, the accused was found in possession of 2160 litres of spirit in 10 barrels and four plastic jars at 10 pm on 30.11.96. The spirit was found kept inside a cattle shed and adjacent thatched shed situated in the residential compound of the accused namely “Pangottu Puthen Veedu” in Ward No.X of Ezhamkulam Panchayat. The alleged possession was detected by CW12, Circle Inspector and his party.

On the side of the prosecution, PWs.1 to 7 were examined and Exts.P1 to P9 and Mos.1 to 5 were identified.

The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.30,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month.

Aggrieved by the said conviction and sentence, an appeal was preferred as Crl. Appeal No.147 of 2005 before the Additional District & Sessions Judge (Adhoc) Fast Track Court III, Pathanamthitta, but the same was dismissed confirming the conviction and sentence passed by the trial court. Aggrieved by the same, the present Crl.Revision Petition is filed.

The petitioner raised the following contentions assailing the order of conviction and sentence imposed by the Courts below. The primary contention raised by the petitioner is regarding the delay in producing the 'thondi' articles before the court. Though the detection was on 30.11.1996, the 'thondi' articles were produced only on 2.12.1996 and the petitioner contends that there is no sufficient explanation for the said delay. PW6 would depose that the said 'thondi' articles were in his possession, but he further deposed that he does not know the reason for the delay in producing the same before the court soon after the detection and seizure. Yet another contention raised is that in Ext.P1 mahazar no specimen seal is seen affixed. It is also contended that no forwarding note is seen produced and marked.

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 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.

As regards the first contention that there is an unexplained delay in producing the contraband articles before the court. Though the detection was on 30.11.1996, admittedly the contraband articles were produced before the court on 02.12.1996. PW6 would depose that the said 'thondi' articles were in his possession, but he further deposed that he does not know the reason for the delay in producing the same before the court soon after the detection and seizure. 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 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:

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

This Court in Chandran and another v. State of Kerala and another (2022 KHC 3500) held as follows:

“12. Coming to the facts of the case, the detection was on 2.2.1998. The accused were arrested on the spot. They were produced at the Court on 3.2.1998. PW1 entrusted the seized contraband substance as well as the sample bottle to PW4 on 2.2.1998. Still, they were produced only on 4.2.1998 at the Court. Thus, there was two days' delay. This has not been explained at all. There was absolutely no evidence to show as to how and in what condition the contraband articles were kept. When there is delay, however short it may be, in producing the seized contraband substance and the sample drawn from it at the Court, the prosecution has not only to explain the delay satisfactorily, but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution failed to satisfy this twin conditions.”

In view of the above, it is to be held that there is no sufficient satisfactory explanation for the delay, which is fatal to the case of the prosecution.

Yet another contention raised is that in Ext.P1 mahazar no specimen seal is seen affixed. It is also contended that no forwarding note is seen produced and marked. Both these contentions can be considered together. 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 containing the remaining part of the contraband and the forwarding note. 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 held that since no specimen impression of seal is seen affixed in the seizure mahazar 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. 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 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.

The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained.

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.

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.