Anil Kumar v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1815 of 2002 ( )** **-------------------------------CRA.22/2002 of ADDL SESSIONS JUDGE,ALAPPUZHA. SC.401/2000 of PRINCIPAL ASST. SESSIONS COURT,ALAPPUZHA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **ANILKUMAR, AGED 20 YEARS,S/O.SATHEESAN, MUNDUKATTIL THEKKETHIL MAHADEVIKADU MURI,KARTHIKAPPALLY VILLAGE.** **BY ADV. SRI.R.PADMAKUMAR** **ESPONDENT/COMPLAINANT;:** **-----------------------** **STATE,REPRESENTED BY** **THE PUBLIC PROSECUTOR, HIGH COURT OF KRALA ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.1815 of 2002 ---------------------------------------------Dated this the 4[th] day of December, 2012 ## **ORDER** The petitioner is the accused in Sessions Case No.401 of 2000 before the Principal Assistant Sessions Judge, Alappuzha. He was prosecuted for offences punishable under Sections 8(1), 8 (2) and 55(a) of the Abkari Act. The prosecution case as stated in paragraph 2 of the Assistant Sessions Judge is as follows: “The prosecution case in brief is that the accused was found to be in possession of 2 ½ litres of arrack at 6.20 p.m. on 11.11.99 at the north of Sasthamadackal bridge in Pulikezhu - Kattil market panchayat road in Karthikapally village. The offence was detected by CW6 who is a preventive officer and party while doing patrol duty.” 2. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P6 as well as MO1. The accused did not adduce any evidence. After considering the evidence adduced, the Assistant Sessions Judge convicted the petitioner and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with a default sentence of simple imprisonment for 2 Crl. R.P.No1815/02 three months for offences punishable under Sections 8(1) and 8(2) of the Abkari Act. No separate was imposed under Section 55 (a) of the Abkari Act. Set off was also allowed. The petitioner challenged the judgment of the Assistant Sessions Judge by filing Criminal Appeal No.22/2002 before the Additional Sessions Judge, Alappuzha. That appeal was dismissed. The petitioner is challenging the judgments of the courts below. 3. The contention of the petitioner is that the prosecution has not proved the guilt of the petitioner beyond a reasonable doubt. According to the petitioner, there is no clear evidence to prove that the seizure was made from the petitioner and that the sample sent for chemical examination was the sample taken from the contraband. It is submitted that there is delay in producing the contraband and sample before the court. It is further submitted that there is no evidence regarding proper sampling of the contraband for chemical examination. According to the learned counsel for the petitioner, the forwarding note has not been marked in Crl. R.P.No1815/02 3 evidence to prove that it was the sample produced before the court which was sent for chemical examination. The petitioner relies on the decision of this Court in _**Raju**_ v. **State of Kerala** [2012(2) KLD 912] in support of his contentions. 4. In answer, the learned Public Prosecutor would submit that in the cross examination of the witnesses by the petitioner, there was not even a suggestion that it was not the sample taken from the contraband, which was sent for chemical analysis. According to the learned Public Prosecutor, the seizure and arrest have been properly proved by the Excise Officers, who made the seizure and arrested the petitioner. It is submitted that the contraband and sample duly sealed were forwarded to the court immediately and there is no reason to suspect that it was not a sample taken from the contraband, which was sent for chemical examination. It is the submission of the learned Public Prosecutor that the prosecution has proved the guilt of the petitioner beyond a reasonable doubt and what the petitioner now seeks, is re-appreciation of evidence, which cannot be done in a revision petition. 4 Crl. R.P.No1815/02 5. I have considered the rival contentions in detail. 6. On going through the records, I find that the contraband and sample were produced before the court only on 10 a.m. on 16.11.1999 whereas the seizure was on 11.11.1999. There is no evidence to explain the delay of five days in producing the contraband and sample before the court. The prosecution has not taken any effort to prove in whose custody the contraband and sample were during the interregnum. This Court has time and again held that it was the bounden duty of the prosecution to prove the custody of the contraband and the sample at every point of time till it reaches the chemical examiner for chemical examination. In this case, there is not even an attempt to explain the delay of five days in producing the contraband and sample before the court. The forwarding note has not even been marked. All these are defects which would vitiate the prosecution, as noted in _**Raju's case**_ (supra). As such, these defects come within the purview of the defects, which this Court has time and again held, will enure to the benefit of the accused. Therefore, Crl. R.P.No1815/02 5 following that decision, I have no other go, but to acquit the petitioner. 7. Accordingly, the revision petition is allowed and the petitioner is acquitted of the offence charged against him. His bail bond is cancelled and he shall be set at liberty. Before parting with the case I want to place on record a disturbing trend which has come to my attention while hearing criminal revisions under the Abkari Act. I am surprised that in prosecutions under the Abkari Act, more often than not this Court is forced to acquit the accused only because the excise officers or the police do not do what they are expected to do for bringing home the guilt of the accused. In most cases it is only because of the procedural lapses on the part of the Excise officers and the Police that the offenders get acquitted. The contraband and samples are not produced in court within a reasonable time as required by law. In most cases the accused escape only because there is delay in producing the contraband before court and there is not even an attempt to explain the delay. I am also surprised that the Prosecutors Crl. R.P.No1815/02 6 and Assistant Public Prosecutors do not take care to prove the necessary ingredients for bringing home the guilt. I find that in spite of the several judgments of this court that it is for the prosecution to prove the safe custody of the contraband and the sample from the time of seizure till it reaches the chemical examiner in a majority of the cases there is no attempt to prove safe custody of the contraband in the evidence adduced by the prosecution. In many cases the required documents like forwarding note, search memo, arrest memo, property list etc., are not proved in evidence. The evidence given by Excise officers and Police officers are perfunctory in nature without proving the essential facts required for a successful prosecution. It is not as if these officers and prosecutors are not aware of the requirements. The law is laid down by several decisions of this Court. No attempt is made to conduct prosecution plugging the loopholes noted by this Court in those decisions and the very same technical mistakes and omissions are repeated time and again helping accused persons to escape from the clutches of law even when they are guilty. I 7 Crl. R.P.No1815/02 am left to wonder whether this is not deliberate on the part of the Excise officers, Police, the Public Prosecutors and the Assistant Public Prosecutors. The Director General of Prosecutions shall bestow his earnest attention to this and issue appropriate directions to the Assistant Public prosecutors, the Excise officers and the Police who conduct the investigation and the prosecution to see that such loopholes are not left in evidence to enable the accused to escape conviction on mere technicalities. ## **S. SIRI JAGAN, JUDGE** ## acd Issue a copy of this order to the learned Director General of Prosecutions Crl. R.P.No1815/02 8 Crl. R.P.No1815/02 9