Chandran S/o Raghava Panicker v. State of Kerala and Excise Inspector, Amaravila Range

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** **Crl.Rev.Pet.No.426 OF 2013** **AGAINST THE JUDGMENT IN CRA 30/2011 DATED 22-12-2012 OF ADDITIONAL SESSIONS COURT (ADHOC), THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT IN SC 1326/2004 DATED 21-01-2011 OF ASSISTANT SESSIONS COURT,NEYYATTINKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **CHANDRAN** **S/O.RAGHAVA PANICKER,KARAKATHALA VEEDU,MEKOLLA DESOM,KOLLAYIL VILLAGE,NEYYATTINKARA TALUK,THIRUVANANTHAPURAM.** **BY ADVS.** **SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SRI.JOHNSON K.KURIEN SRI.P.S.PRASAD** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.** - **2 EXCISE INSPECTOR AMARAVILA RANGE,THIRUVANANTHAPURAM,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM – 682 031.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.06.2020, THE COURT ON 01.07.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.426 OF 2013** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- **Crl.R.P. No. 426 of 2013** ----------------------------------------------------Dated this the 1[st] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No.1326/2004 on the file of the Court of the Assistant Sessions Judge, Neyyattinkara. 2. The prosecution case is that, on 28.02.2002, at about 13:00 hours, at the public road near Dhanuvachapuram Junction in Kollayil Village, the Excise Inspector (PW2) of the Amaravila Excise Range Office found the petitioner/accused with a can containing 2.500 litres of arrack. 3. The trial court framed charge against the accused for the offences under Sections 8(1) and 55(a) of the Abkari Act. The accused pleaded not guilty to the offences and he claimed to be tried. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P8 documents and MO1 material object. No evidence was adduced by the petitioner/accused. (Ext.D1 is only the contradiction in the **Crl.Rev.Pet.No.426 OF 2013** **3** statement of a witness under Section 161 Cr.P.C) 5. The trial court found the accused guilty of the offences under Sections 8(1) and 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. The petitioner filed Crl.A.No. 30/2011 before the Court of Session, Thiruvananthapuram, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. Learned counsel for the petitioner contended that there was delay in producing the can allegedly seized from the possession of the petitioner before the court. Learned counsel would also contend that the evidence adduced by the prosecution is not sufficient to establish **Crl.Rev.Pet.No.426 OF 2013** **4** that sample was taken from the liquid contained in the very same can allegedly seized from the possession of the petitioner and forwarded for analysis. 10. PW2 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW3 is the Preventive Officer who was in the excise party led by PW2. His evidence corroborates the testimony of PW2 regarding the material particulars of the occurrence. 11. PW1 and PW4 are the independent witnesses examined by the prosecution. They denied having seen the incident. They even denied the signature in Ext.P1 seizure mahazar. 12. Ext.P4 is the chemical analysis report received in respect of the sample of liquid which was forwarded for analysis. It shows that the sample contained 46.84% by volume of ethyl alcohol. 13. PW2 Excise Inspector has given evidence that he seized the can containing arrack from the possession of the accused and sealed the can at the spot of the occurrence. He identified MO1 in the court as the can seized by him. 14. Ext.P1 seizure mahazar contains a recital that the can was sealed and label, bearing the signature of PW2 and the accused and the witnesses, was affixed on it. However, PW2 and PW3 have not **Crl.Rev.Pet.No.426 OF 2013** **5** stated that label, bearing the signature of accused and the witnesses, was affixed on the can at the spot of the occurrence. They have only given evidence that the can containing the arrack was sealed. 15. PW2 has stated on cross-examination that it was his personal seal which was used for sealing the can. There is no recital to that effect in Ext.P1 seizure mahazar. The specimen of the seal used is also not seen affixed on Ext.P1 mahazar. 16. Ext.P2 is the crime and occurrence report prepared by PW2 at the Excise Range Office. The description of the can given in Ext.P2 report does not show that it was in a sealed condition or that there was any seal on it. 17. Ext.P6 is the property list prepared by PW2 for producing the can containing the arrack before the court. The description of the can given in Ext.P6 property list shows that there was seal on it. 18. It can be inferred from the above circumstances that the can was not sealed at the spot of the occurrence as spoken to by PW2 and PW3 and that there was no seal on the can at the time of preparation of Ext.P2 crime and occurrence report but the seal was affixed on it at the excise range office and thereafter, it was produced before the court as per Ext.P6 property list. 19. However, there is no merit in the contention of the learned **Crl.Rev.Pet.No.426 OF 2013** **6** counsel for the petitioner that there was delay in producing the can containing arrack before the court. The endorsement of the learned Magistrate on Ext.P6 property list would show that the can was produced before him on 28.02.2002 itself but it was returned to the safe custody of the Excise Inspector since the staff of the court was on strike. However, as stated earlier, the infirmity with regard to seal on the can was there at the time of producing it before the learned Magistrate. Ext.P6 property list also does not show that there was any label, bearing signature of the accused and the witnesses, on the can at the time of its production before the learned Magistrate. 20. The aforesaid circumstances create doubt as to whether the very same can containing arrack allegedly seized from the possession of the accused was produced before the learned Magistrate as per Ext.P6 property list. 21. No sample from the liquid contained in the can had been taken by PW2 at the spot of the occurrence. The property clerk of the Magistrate's Court concerned was examined as PW6. He has given evidence that sample was taken on 19.03.2002 itself when the can was produced before the court. However, PW6 would state that there was no order issued by the learned Magistrate for taking sample. There is also no record or document made for drawing sample of the **Crl.Rev.Pet.No.426 OF 2013** **7** liquid from the can. The evidence of PW6 is only that sample was taken on 19.03.2002 itself. He has not stated that he was the person who took the sample. There is also no evidence to find that sample was taken in the presence of the Magistrate. 22. Ext.P7 is the certified extract of the property register kept in the Magistrate's Court concerned. The description of the can given in Ext.P7 extract does not show that there was any seal or label on the can which was received in the court and from which the sample was taken at the court. 23. In the aforesaid circumstances, there is no assurance that the sample which was taken at the court and which was forwarded for analysis was a sample of the liquid contained in the very same can which was allegedly seized from the possession of the accused. In other words, there is no assurance that Ext.P4 chemical examination report relates to the sample of the liquid contained in MO1 can which was seized from the possession of the accused. ## 24. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019** **SC 3569** , the Supreme Court has held as follows: "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the **Crl.Rev.Pet.No.426 OF 2013** **8** circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". 25. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 26. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. 27. Consequently, the revision petition is allowed. The order of **Crl.Rev.Pet.No.426 OF 2013** **9** conviction and sentence passed against the petitioner/accused by the trial court under Sections 8(1) and 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offences and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. **Sd/-R. NARAYANA PISHARADI JUDGE** **lsn**