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2025 Supreme(Ker) 587
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.V. JAYAKUMAR, J.
Raju S/o John - Petitioner
Versus
State of Kerala - Respondent
Crl. Rev. Pet. No. 2362 of 2013
Decided On : 10-03-2025
Advocate Appeared:
For the Appellant : BY ADVS. SRI.PAULY JOSEPH SMT.S.INDU SRI.S.SHANAVAS KHAN
For the Respondent: SRI. RANJIT GEORGE-P
IMPORTANT POINT
The prosecution must prove its case beyond reasonable doubt, and failures in establishing the chain of custody and unexplained delays are fatal to the prosecution's case.
Headnote:
(A) Abkari Act - Sections 8(1) and 8(2) - Criminal revision petition against conviction for carrying arrack - Prosecution failed to prove the chain of custody of the sample due to unexplained delay and non-examination of key witnesses - Courts below overlooked serious illegalities affecting the prosecution case. (Paras 9 - 12 )
(B) Benefit of doubt - The prosecution must prove its case beyond reasonable doubt; mere suspicion is insufficient. (Paras 11 - 12 )
Facts of the case:
The accused was found carrying arrack and was convicted by the trial court, which was upheld by the appellate court. The accused challenged the conviction citing failures in the prosecution's evidence.
Findings of Court:
The courts below failed to consider vital aspects regarding the chain of custody and the unexplained delay in forwarding the sample.
Issues: The main issues were the failure to establish the chain of custody of the sample and the implications of unexplained delays in the prosecution's case.
Ratio Decidendi: The court held that the prosecution's failure to examine key witnesses and the unexplained delay in forwarding the sample were fatal to the case, warranting the benefit of doubt to the accused.
Result: Criminal revision petition is allowed; the impugned judgment is set aside, and the accused is acquitted.
ORDER :
K. V. JAYAKUMAR, J.
This criminal revision petition is preferred impugning the judgment of the learned Additional Sessions Judge, Irinjalakuda in Crl.A.No.332 of2008.
2. The revision petitioner herein is the sole accused in Crime and Occurrence Report No.8 of 2004 of Excise Range, Irinjalakuda registered for offences punishable under Sections 8(1) and 8(2) of the Abkari Act.
3. The prosecution case is that, on 26.01.2004 at about 6.15 p.m., while PW1-Preventive Officer of Excise Range, Irinjalakuda was conducting patrol duty at Chelakottukara bridge, the revision petitioner was found to be carrying 3 litres of arrack in a black can. He was also carrying a glass. PW1 detected the case and arrested the accused.
4. The trial court convicted and sentenced the accused to undergo simple imprisonment for one year and to pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for three months.
5. The appellate court confirmed the conviction, but modified the sentence.
6. Impugning the judgment of the learned Additional Sessions Judge, Irinjalakkuda, the accused preferred this revision.
7. Before the trial court, PWs.1 to 5 were examined, Exts.P1 to P10 were marked and MOs.1 to 3 were identified. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure.
8. I have heard Adv.Ranjith George, the learned Public Prosecutor and Adv.S.Indu, learned counsel appearing for the revision petitioner.
9. The main contention of the revision petitioner/accused is that, Ext.P7 forwarding note did not contain the name of the Guard to whom it was entrusted for forwarding it to the Chemical Analyst. Moreover, there is a delay of about one month in forwarding the material objects to the Chemical Analyst from the court. The said delay of one month is not explained by the prosecution. It is further submitted that the Excise Guard, who took the samples to the Analyst was neither mentioned nor the said Guard was not examined by the prosecution and thereby the prosecution has failed to prove that the very same sample taken from the accused was forwarded to the Chemical Analyst. In the absence of such evidence, the prosecution has failed to prove their case beyond reasonable doubt. It is further submitted that, the Thondi Clerk who kept the articles in the court for about one month was also not examined by the prosecution to ensure that the articles were kept in the proper custody.
10. The next submission by Adv.Indu, learned counsel for the revision petitioner is that, PW5- independent witness, turned hostile to the prosecution. The learned counsel has placed reliance on the decision in Sugathan @ Kunjankilli v. State of Kerala [2023 KHC OnLine 9345] and submitted that, non-examination of the Thondi Clerk, through whom the sample was sent to the Chemical Analyst and the name of the Guard to whom it was entrusted for forwarding it to the Chemical Analyst, are fatal to the case of the prosecution. The learned counsel for the revision petitioner invited the attention of this Court to Paragraph 9 of the Sugathan's case which is extracted hereunder;
“9. Yet another contention raised by the revision petitioner is that a perusal of Ext.P6 chemical analysis report would reveal that the sample was forwarded from the Court as per letter No. T.R.329/2001 dated 19.10.2001,but admittedly the same reached the chemical analysis laboratory only on 28.10.2021. The forwarding note does not contain the date on which the samples were forwarded for chemical analysis. The learned Counsel for the revision petitioner would also contend that the forwarding note does not contain the name of the guard through whom the samples were sent for chemical examination. Therefore, it is contended that it was incumbent on the part of the prosecution to examine either the property clerk or the person through whom the contraband was sent for examination to the chemical analysis laboratory, having not done so, it i
