Chennappil Vijayan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** **Crl.Rev.Pet.No.2348 OF 2004(C)** **AGAINST THE JUDGMENT IN CRA 621/2001 DATED 07-07-2004 OF ADDITIONAL DISTRICT COURT, KOZHIKODE** **AGAINST THE JUDGMENT IN CC 1064/1998 DATED 30-10-2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOYILANDY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **CHENNAPPIL VIJAYAN** **S./O.KRISHNAN, KINALUR AMSOM, KILIKUDUKKA,, KOYILANDY TALUK.** ## **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **THROUGH THE EXCISE INSPECTOR, BALUSSERY RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.07.2020, THE COURT ON 10.07.2020 PASSED THE FOLLOWING:** **Crl.R.P. No. 2348 of 2004** **2** ## **R. NARAYANA PISHARADI, J** ## **-----------------** ----------------------------------- **Crl.R.P. No. 2348 of 2004** ----------------------------------------------------Dated this the 10[th] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C No.1064/1998 on the file of the Court of the Judicial First Class Magistrate, Koyilandy. 2. The prosecution case is that, on 12.08.1996, at about 17:00 hours, at the road in front of the church at 27[th] mile in Thalayad-Kakkayam road, PW1 Preventive Officer found the petitioner/accused with a can containing two litres of arrack. 3. The petitioner/accused pleaded not guilty to the offence punishable under Section 58 of the Abkari Act which was charged against him. Thereupon, the prosecution examined PW1 to PW4 and marked Exts.P1 to P4 documents and MO1 material object. 4. The trial court found the petitioner guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three **Crl.R.P. No. 2348 of 2004** **3** months. 5. The petitioner filed Crl.A.No. 621/2001 before the Court of Session, Kozhikode, 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. 6. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 7. Heard. Perused the records. 8. PW1 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the Excise Guard who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 regarding the material particulars of the occurrence. 9. PW3 is the independent witness examined by the prosecution. He did not support the prosecution case. He denied having seen the incident. But, he admitted his signature in Ext.P1 seizure mahazar. 10. Ext.P4 is the chemical examination report received in respect of the sample of liquid which was forwarded for analysis. It **Crl.R.P. No. 2348 of 2004** **4** shows that the sample of liquid contained 50.54% by volume of ethyl alcohol. 11. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 12. The evidence of PW1 is that he took sample of the liquid from the can seized from the possession of the accused and that he sealed the sample bottle and the can and that he affixed label, bearing the signature of the accused, on those articles. Ext.P1 seizure mahazar also contains a recital to that effect. 13. PW1 has given evidence that he produced the accused and the articles at the Excise Range Office. Ext.P2 is the crime and occurrence report registered by the Preventive Officer who was in charge of the Excise Inspector. The description of the articles given in Ext.P2 report does not show that the can and the sample bottle had any label, bearing the signature of the accused, on them. 14. Ext.P3 is the copy of the forwarding note prepared and submitted by PW4 Excise Inspector for sending the sample for analysis. The specimen of the seal affixed by PW1 on the sample bottle and the can is provided in Ext.P3 forwarding note. PW1 has given evidence that he had used his personal seal, 'C.K.A', for sealing **Crl.R.P. No. 2348 of 2004** **5** the sample bottle and the can. However, that fact is not mentioned in Ext.P1 seizure mahazar. The specimen of the seal is also not seen affixed on Ext.P1 mahazar. In such circumstances, there is no assurance that PW1 had sealed the sample bottle and the can at the spot of the occurrence by using his personal seal, the specimen of which was provided in the forwarding note. 15. PW4 Excise Inspector has given evidence that he produced the material objects before the court. The list of properties, which should have been prepared by PW4 for producing the material objects before the court, is not marked in evidence. Therefore, there is no legal evidence to find that the very same sample bottle and the can, which were produced by PW1 at the Excise Range Office, were produced before the court. 16. The occurrence was on 12.08.1996. PW4 has given evidence that, as per the records in the court, the properties were produced before the court on 16.08.1996. There is absolutely no evidence as to how and in what condition the sample and the can containing the residue were kept at the excise office till they were produced in the court. 17. When there is delay in producing the samples of the contraband substance in the court and when the evidence is that they **Crl.R.P. No. 2348 of 2004** **6** were kept in the police station, the prosecution has to adduce evidence to show as to how and in what conditions the samples were preserved at the police station (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). The same principle applies when properties are kept in the excise office. 18. The delay in producing the sample as well as the can containing the residue before the court is also not explained by PW4 Excise Inspector. He has not given any evidence as to the reason for the delay in producing the properties, including the sample, before the court. 19. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that it is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate forthwith either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari manual. It was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without **Crl.R.P. No. 2348 of 2004** **7** unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 20. In the aforesaid circumstances, there is no assurance that the very same sample allegedly drawn by PW1 from the liquid allegedly seized from the possession of the accused was produced before the court and the very same sample was forwarded for chemical analysis. It follows that, there is no assurance that Ext.P4 chemical examination report relates to the very same sample allegedly drawn by PW1 at the spot of the occurrence. 21. 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 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". 22. 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 Sections 55(a) or 58 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 **Crl.R.P. No. 2348 of 2004** **8** 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. 23. 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, I find that the conviction entered against the petitioner/accused cannot be sustained. 24. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 58 of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. **Sd/-** **R. NARAYANA PISHARADI JUDGE** lsn