Chandrika v. The C.I. of Excise, Ottappalam, Palakkad and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. S. Gopinathan
Judgment Date: 2012-09-20
Court Decision / Holding: Revision petition allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court with the minimum fine imposed by the trial court, along with a default sentence.
Final Disposition: Revision petition allowed in part.

Parties to the Case

Appellants / Petitioners

Chandrika, wife of (late) Raman, Thaikkottu Veettil, Vilathoor Desom, Thiruvagapura Village, Ottappalam Taluk

Respondents

The C.I. of Excise, Ottappalam, Palakkad
State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.V. Raja
• Sri. M.T. Sureshkumar

Counsels for Respondents

• Smt. Lisha M.G. (Public Prosecutor)

Case Synopsis & Summary

Chandrika, the revision petitioner, was charged under Section 58 of the Abkari Act for allegedly possessing illicit arrack after authorities intercepted her with a jerry can containing MO1 at Veluthur-Mahjambra road on 16 October 1995. The liquid was tested and found to be illicit arrack (49.1% ethyl alcohol by volume) as per Ext. P2, with MO1 and Ext. P1 (mahazar) produced before the court. The Judicial Magistrate of First Class convicted her, sentencing imprisonment for two months and a fine of Rs. 15,000 with a default sentence, a verdict upheld on appeal by the Additional Sessions Judge (Adhoc). The revision petition before P.S. Gopinathan, J., challenges the conviction, arguing, inter alia, possible tampering of the sample and relying on Sasidharan v. State of Kerala to illustrate the need for non-tampering proof. The court, after careful evaluation of PWs 1–4 and their consistent testimony on sampling and forwarding, rejected the tampering challenge as inapplicable to the facts; noted no illegalities in the process, and sustained the conviction. However, acknowledging the petitioner’s status as a widow and lack of a prior bad record, the court reduced the substantive sentence to imprisonment till the rising of the court with the minimum fine, directing surrender for execution. The petition is allowed in part, with the conviction affirmed and the sentence partially lenient.

Provisions of Law Cited

Section 58 of the Abkari ActSection 313(1)(b) CrPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner, through counsel, relied on Sasidharan v. State of Kerala to flag potential tampering of the sample and the need for proof of non-tampering. She argued the case bears similarities that warrant scrutiny of sampling procedures and cautioned against overlooking possible irregularities, while requesting leniency in sentencing given her status as a widow. The counsel emphasized the absence of any defense evidence and pointed to the consistent testimony regarding seizure and sampling.

Contentions of Respondents

The prosecution argued that the evidence, including PW1 (Preventive Officer) and PW4 (investigator), plus Exts. P1, P2 and MO1, established a cogent chain from arrest and seizure to analysis, with Ext. P2 confirming 49.1% ethyl alcohol. The defense was not able to establish tampering, and cross-examination did not undermine the material substance. The respondents urged maintenance of conviction and the existing sentence or its proportionate upholding.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sasidharan v. State of Kerala	2007 (1) KLT 720	Mentioned Only	Cited by the petitioner to challenge non-tampering of the sample; court notes the case is not applicable to the facts and distinguishes it.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934** **------------------------------CRA.167/1997 of ADDITIONAL SESSIONS JUDGE (ADHOC), PALAKKAD ST.2578/1996 of J.M.F.C., PATTAMBI** **REVISION PETITIONER(S)/PETITIONER/APPELLANT/ACCUSED:: ----------------------------------------------------** **CHANDRIKA, WIFE OF (LATE) RAMAN, THAIKKOTTU VEETTIL, VILATHOOR DESOM THIRUVAGAPURA VILLAGE, OTTAPPALAM TALUK.** **BY ADVS.SRI.V.V.RAJA** **SRI.M.T.SURESHKUMAR** ## **COMPLAINANT(S)/RESONDENTS/COMPLAINANT & STATE::** **-----------------------------------------------** **1. THE C.I. OF EXCISE** **OTTAPPALAM, PALAKKAD.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY P.P.SMT. LISHA M.G.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S. GOPINATHAN, J.** ...................................................... Crl.R.P.NO.763 OF 2002 ...................................................... Dated this the 20[th] day of September, 2012 ## **O R D E R** Revision petitioner is the accused in S.T.No.2578/1996 on the file of the Judicial Magistrate of the First Class, Pattambi. The Circle Inspector of Excise, Ottapalam, who was examined as PW4, prosecuted the revision petitioner accusing offence under Section 58 of the Abkari Act with an allegation that at 4.30 p.m on 16.10.1995, while PW1, a Preventive Officer attached to Ottapalam Excise Range moving on patrol duty along with other officials through Veluthur-Mahjambra panchayat road, the revision petitioner was found coming across them with a jerry can, which was marked as MO1, containing 1.5 litres of illicit arrack. Seeing PW1 and party, the revision petitioner attempted to turn away. She was intercepted, the contents in MO1 were tested by smell and taste and convinced that it was nothing but illicit arrack. Therefore, the revision petitioner was arrested. MO1 with the liquid was seized. 180 mls was taken in a sample bottle. Ext.P1 seizure mahazer was : 2: ## Crl.R.P.NO.763 OF 2002 prepared for the arrest and seizure. The revision petitioner was released on bail. MO1 and the sample with Ext.P1 mahazer were produced before PW4. PW4 registered a case and proceeded with the investigation. The sample was forwarded to the Chemical Examiner, who by Ext.P2 report certified that the sample contained 49.1% ethyl alcohol by volume. After completing the investigation charge sheet was filed. 2. Since the revision petitioner pleaded not guilty before the trial court, she was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts.P1, P2 and MO1 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 (b) of the Code of Criminal Procedure. The revision petitioner denied the incriminating evidence and advanced a plea that she was falsely implicated. However, no defence evidence was let in. 3. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilty. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for two months and a fine of Rs.15,000/- with a default sentence of simple imprisonment for a further period : 3: ## Crl.R.P.NO.763 OF 2002 of two months. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.No.167/1997 before the Sessions Judge, Palakkad. The Additional Sessions Judge, (Adhoc-II), to whom the appeal was made over, by judgment dated 25.5.2002 concurred with the trial court and the appeal was dismissed. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was preferred. 4. I have heard Smt.K.K. Meera Nambiar, the learned counsel appearing for the revision petitioner and Smt.M.G. Lisha, the learned Government Pleader. Perused the judgment impugned. The learned counsel for the revision petitioner took me through the relevant portions of the evidence. 5. PW1, the Preventive Officer, had given evidence in support of the prosecution case. PW2, the Excise Guard accompanying PW1, also had given supporting evidence. Though they were subjected to searching cross examination, regarding the arrest and seizure, there is no much challenge. Nothing is brought in evidence or suggested to conclude that the revision petitioner was falsely implicated for any reason : 4: ## Crl.R.P.NO.763 OF 2002 whotsoever. PWs 1 and 2 had identified MO1 and Ext.P1.PW3, the independent witness, though denied having witnessed the arrest and seizure, admitted the signature in Ext.P1 which corroborates with the evidence of PW1 regarding the arrest of the revision petitioner and seizure of MO1 with liquor. 6. PW4 would depose about the process of investigation. He would depose that the material objects were received to him from PW1 in sealed condition and it was produced before the court on the next day. Since there was some amendment to the Abkari Act, the material objects were returned to PW4 and it was represented on 19.1.1996. Through court, the sample was sent to the chemical examiner who issued Ext.P2 report certifying that the sample contained 49.1% ethyl alcohol by volume. The learned counsel for the revision petitioner relying upon the decision reported in Sasidharan v. State of Kerala (2007 (1) KLT 720) would submit that there is no proof in this case regarding non tampering of the material object. The case on hand has no similarity with the reported case. In this case there is consistent evidence of PWs 1 and 4 regarding the sampling and forwarding the same to : 5: ## Crl.R.P.NO.763 OF 2002 the court without tampering. Critically going through the evidence of PWs 1 to 4, I find no error, illegality or impropriety committed by the courts below in arriving at a conclusion of the guilty of the revision petitioner. Therefore, I find that the conviction under challenge is based upon cogent evidence and requires no interference. 7. Regarding the sentence, the learned counsel for the revision petitioner would submit that the revision petitioner, then a widow aged 26 years was a coolie and that now she is in her forties and therefore, she is entitled to leniency in sentence. I find merit in the submission made by the learned counsel for the revision petitioner. Probably the circumstances might have led her to liquor business. No bad antecedent is reported. Therefore, I find that she is entitled to leniency in sentence and that a sentence of imprisonment till the rising of the court with the minimum fine as imposed by the trial court would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court and the : 6: Crl.R.P.NO.763 OF 2002 minimum fine imposed by the trial court with default sentence. Revision petitioner is directed to surrender before the trial court to suffer the sentence. The trial court shall see the execution of the sentence and report compliance. Sd/- **P.S. GOPINATHAN, JUDGE.** cl /true copy/ P.S. to Judge : 7: Crl.R.P.NO.763 OF 2002 ## **P.S. GOPINATHAN, J.** ................................................. Crl.R.P.NO.763 OF 2002 ..................................................... 20[th] September, 2012 **O R D E R** : 8: Crl.R.P.NO.763 OF 2002