Chandran v. State of Kerala; Ganesan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH ``` ``` MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 CRL.REV.PET NO. 3847 OF 2006 ``` ``` AGAINST THE JUDGMENT IN CRA 165/2004 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE SC 426/2001 OF THE COURT OF SESSIONS, KOZHIKODE DIVISION REVISION PETITIONER/APPELLANT NO.1/ACCUSED NO.1: ``` ``` CHANDRAN, S/O KARUPPU, PALLINTAVIDE HOUSE, VATAKARA AMSOM AND TALUK, PURANKARA DESOM, KOZHIKODE DISTRICT. ``` ``` BY ADV SRI.P.V.ANOOP ``` ## **`RESPONDENT/RESPONDENTS/COMPLAINANT & STATE:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SRI.SANAL P.RAJ ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.10.2021, ALONG WITH Crl.Rev.Pet.3401/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:2:- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 CRL.REV.PET NO. 3401 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 165/2004 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE SC 426/2001 OF THE COURT OF SESSIONS, KOZHIKODE DIVISION ``` ## **`REVISION PETITIONER/APPELLANT NO.2/ACCUSED NO.2:`** ``` GANESAN, S/O KANARAN, MUTTUNGAL VALAPPIL MEETHAL HOUSE, PURANKARA DESOM, VATAKARA AMSOM AND TALUK. ``` ``` BY ADV SRI.P.V.ANOOP ``` ## **`RESPONDENT/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1EXCISE INSPECTOR VATAKARA EXCISE RANGE OFFICE. ``` ``` 2THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SRI.SANAL P.RAJ ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.10.2021, ALONG WITH Crl.Rev.Pet.3847/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ## `-:3:-` **==> picture [44 x 11] intentionally omitted <==** ``` O R D E R ``` ``` Dated this the 25[th ]day of October, 2021 ``` These criminal revision petitions are directed against the judgment dated 18[th] March, 2006 passed by the Additional Sessions Court, (Adhoc-II), Kozhikode (for short, “the appellate court”) in Crl.Appeal No.165/2004 confirming the judgment dated 16[th] February, 2004 passed by the Assistant Sessions Court, Vatakara (for short “the trial court”) in SC No.426/2001. 2. The revision petitioners/accused Nos.1 and 2 faced trial for the offence punishable u/s 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. 3. The prosecution case in short is that on 2/2/1998 at 5.45 p.m, the accused were found transporting 40 bottles of Indian Made Foreign Liquor (IMFL) each containing 180 of ml liquor in an autorickshaw bearing Regn.No.KL-11D 7594 at Rayarangoth from Mahe to Kerala without any valid documents and in contravention of the Abkari Act and the Rules. 4. On receipt of the summons, both accused appeared at ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:4:- ``` the trial court. After hearing both sides, charge was framed against the accused u/s 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 7 and marked Exts.P1 to P12. MO1 to MO3 were identified. The accused were questioned u/s 313 of Cr.P.C. They denied all the incriminating circumstances brought against them during evidence. It was submitted that they are innocent. No defence evidence was adduced. 6. Considering the evidence on record, the trial court found the accused guilty u/s 55(a) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of 2 years each and to pay a fine of `1,00,000/- each, in default to suffer simple imprisonment for a period of 6 months each as per the judgment dated 16[th] February, 2004. 7. Aggrieved by the conviction and sentence passed by the trial court, the accused preferred the appeal at the appellate court as Crl.Appeal No.165/204. The appellate court as per the judgment dated 18[th] March, 2006 allowed the appeal in part ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:5:- ``` confirming the conviction, but reducing the substantive sentence to one year from two years and default sentence to three months from six months. Challenging the conviction and sentence passed by the courts below, the first accused preferred Crl.R.P.No.3847/2006 and the second accused preferred Crl.R.P.No.3401/2006. Since both the revision petitions are interconnected, I am disposing of the same by this common order. 8. I have heard Sri.Anoop P.V., the learned counsel for the revision petitioners and Sri.Sanal P.Raj, the learned Public Prosecutor. 9. The learned counsel appearing for the revision petitioners impeached the findings of the courts below and resultant finding as to the guilt mainly on two grounds: (1) There is unexplained delay of two days in producing the contraband article at the court. (2) Out of the total 40 bottles seized, sample was drawn only from one bottle having 180 ml capacity and, hence, there is no evidence to show that the remaining 39 bottles, allegedly recovered from the accused, also contained Indian made foreign liquor. The courts below committed serious ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:6:- ``` illegality in convicting the revision petitioners overlooking these vital points, submitted the counsel. The learned Public Prosecutor, on the other hand, supported the findings and verdict handed down by the courts below and argued that necessary ingredients of S.55(a) of the Abkari Act and Section 9 of the Foreign Liquor Rules had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 10. PW1, the Preventive Officer in Vatakara Excise Circle Office detected the offence. PW2, another Preventive Officer in Vatakara Excise Office accompanied PW1. The evidence of PW1 and PW2 would show that while they were on patrolling duty on the date and time of the incident, they got reliable information that two persons were transporting foreign liquor from Mahe to Kerala in an autorickshaw bearing Regn.No.KL-11D 7594 and when they reached in front of Chorode Panchayat Office, they found the said autorickshaw coming from the opposite direction The accused No.1 was the driver. The accused No.2 was sitting in the passenger seat. PW1 and PW2 intercepted and stopped the autorickshaw in front of ration shop No.20. Immediately after the autorickshaw was stopped, the driver ran away. PW2 and another ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:7:- ``` guard in the spot chased and caught him. PW1 and the guard mentioned above intercepted the accused No.2 who was sitting in the passenger seat. Both the accused were arrested. Exts.P1 and 2 are arrest memos. Thereafter they inspected the autorickshaw and found two cardboard boxes kept in between the body and the engine. When they opened the boxes, they could find 20 bottles of 180ml capacity of Old Port XXX Rum in each box. They seized all the bottles. One of the bottles was opened and sample was drawn. It was sealed and packed in the presence of witnesses. Ext. P4 is the seizure mahazar. PW1 after reaching office, registered crime against the accused. Ext. P5 is the occurrence report and Ext. P6 is the crime report. On the same day, at 8.10 p.m., he handed over the accused and seized articles to PW4, the Excise Range Inspector, Vatakara. The Preventive Officer of Excise Range Office, Vatakara re registered the case as Crime No.3/1998. PW4 produced the seized contraband articles at the Court on 4/2/1998. PW7, the Excise Inspector, Vatakara Excise Range Office conducted the investigation. The sample was sent for chemical analysis and after the analysis, the report was received which was marked as Ext.P10. The report would show ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ## `-:8:-` that the sample contained 41.66% by volume of ethyl alcohol. 11. The main contention put forward by the learned counsel for the revision petitioners is about the delay in producing the samples of contraband substance at the court below. It is settled that the unexplained delay in producing the contraband substance and the samples drawn from it at the court is fatal to the prosecution case. The Apex Court in _**State of Uttar Pradesh v. Hansraj @ Hansu**_ [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. A Division Bench of this Court in _**Ravi v. State of Kerala**_ [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in _**Ramankutty v. Excise Inspector**_ [2013 (3) KHC 308] has held ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:9:- ``` that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in _**Ravi v. State of Kerala**_ [2018 (4) KLT Online 2056]. Relying on the Division Bench's decision in _**Ravi**_ (supra), recently, another Single Bench of this Court in _**Anilkumar v. State of Kerala**_ (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal. 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 ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:10:- ``` preserved during the interregnum period. The prosecution failed to satisfy this twin conditions. 13. The learned counsel appearing for the revision petitioners, next, contended that since the sample was drawn only from one of the bottles seized, it cannot be said that remaining 39 bottles were of IMFL or not. As only one bottle of 180 ml. capacity was found containing IMFL, it comes within the permitted capacity. Therefore, the prosecution failed to prove the offence alleged against them under S.55(a) of the Abkari Act, is the submission. The learned Public Prosecutor, on the other hand, submitted that the labels affixed on all the bottles seized showed that all the bottles contained Old Port XXX Rum and, therefore, chemical analysis of the contents of every bottle is not required. 14. The learned Single Judge of this Court in _**Krishnankutty v. State of Kerala**_ (2005 KHC 949) took the view that when the samples were taken only from one of the bottles of many seized bottles, it cannot be said that all the bottles contained IMFL. The correctness of the said decision was doubted by another Single Bench of this Court and it was referred to a Division Bench. The Division Bench in _**Chakkyath**_ ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:11:- ``` _**Chandran v. State of Kerala**_ (2008 (2) KHC 429) held that if large number of similarly labelled bottles purported to contain same type of articles are seized, chemical examination can be done by taking one bottle or certain number of bottles selected at random. The Division Bench relied on the decision of the Apex Court in _**Vijendrajit Ayodhya Prasad Goel v. State of Bombay**_ (AIR 1953 SC 247) wherein it was held that it is wholly unnecessary to send all the bottles recovered by the police which contained the same stuff for the purpose of analysis. The decision of the Division Bench in _**Chakkyath Chandran**_ (supra) was followed by another learned Single Judge in _**Kelukutty C. v. State of Kerala**_ (2009 (4) KHC 110). It was held that when similarly labelled and sealed bottles purported to contain same type of articles are seized, the samples need not be drawn from each and every bottle. 15. Coming to the facts of this case, the evidence on record would clearly show that all the 40 bottles seized from the possession of the accused were carrying label Old Port XXX Rum. All bottles were kept in two cardboard boxes containing 20 bottles each. All the bottles were sealed as well. All the bottles contained ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:12:- ``` same quantity. When number of sealed IMFL bottles which are homogeneous in nature are seized, it is not necessary to draw the sample from each and every bottle and subject to chemical analysis. Hence, the argument of the learned counsel for the revision petitioners based on this point must fail. 16. It is true that that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re appreciation of evidence. However, if the findings in the judgment under revision have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/ inadmissible materials or the entire approach of the Court in dealing with the evidence is patently illegal, leading to the miscarriage of justice, nothing prevents the High Court from exercising such revisional powers. The powers under Section 397 read with S.401 of Cr.P.C are inherent in nature to correct the judgments and orders of the Courts below which suffer from gross illegality or jurisdictional error. As stated already, there is unexplained delay of two days in producing the contraband substance at the Court. There is absolutely no proof to show where and in what condition those articles were kept during the ``` Crl.R.P.Nos.3401 & 3847/2006 ``` ``` -:13:- ``` interregnum period of two days. In these circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the very sample taken on the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. For these reasons, I hold that it is a fit case where discretionary power vested with this Court under Section 397 read with S.401 of Cr.P.C could be exercised. In the light of the above findings, the conviction and sentence passed by the courts below vide the impugned judgments are set aside. The revision petitioners are found not guilty of the offence charged against them and accordingly they are acquitted. Their bail bonds are cancelled. Both criminal revision petitions are allowed as above. ``` Sd/- ``` ## **`DR. KAUSER EDAPPAGATH`** ``` JUDGE ``` Rp