Chirutha, W/o Sasi Venkilattumeethal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** **Crl.Rev.Pet.No.2904 OF 2005** **AGAINST THE JUDGMENT IN CRA 687/2001 DATED 30-06-2005 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE** **AGAINST THE JUDGMENT IN CC 1165/1998 DATED 27-11-2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS,KOYILANDY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **CHIRUTHA, W/O SASI VENKILATTUMEETHAL, UNNIKULAM AMSOM PANOOR DESOM, KOYILANDY TALUK.** **BY ADV. SRI.P.R.SREEJITH** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.05.2020, THE COURT ON 01.06.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.2904 OF 2005** **2** ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------Crl.R.P No. 2904 of 2005** **-----------------------------------------------------** Dated this the 01[st] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C No. 1165/1998 on the file of the Court of the Judicial First Class Magistrate, Koyilandy. 2. Concurrent verdicts of guilty and conviction recorded against the petitioner and the sentence imposed on her by the trial court as well as the appellate court under Section 58 of the Abkari Act, 1077 are being assailed in this revision petition. 3. The prosecution case is that, on 25.08.1996, at about 17:30 hours, at the rocky area at the place Plavunnichal in Koyilandy Taluk, PW2 Preventive Officer found the petitioner having in her possession MO1 bottle containing 750 ml. of arrack. 4. The petitioner pleaded not guilty to the offence under Section 58 of the Abkari Act. Thereupon, the prosecution examined PW1 to PW6 and marked Exts.P1 to P4 documents and MO1 material object. **Crl.Rev.Pet.No.2904 OF 2005** **3** No evidence was adduced by the petitioner/accused. 5. Learned Magistrate found the petitioner guilty of the offence punishable under Section 58 of the Abkari Act and convicted her thereunder and sentenced her to undergo simple imprisonment for a period of three months and to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.687/2001 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against her by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty, conviction and sentence made against her by the courts below are challenged by the petitioner in this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW2 is the Preventive Officer who detected the offence. PW3 is another Preventive Officer who was in the excise party led by PW2. They have given evidence regarding the occurrence in detail. **Crl.Rev.Pet.No.2904 OF 2005** **4** 10. The evidence of PW2 and PW3 would show that the excise party found a bottle containing some liquid in the possession of the petitioner and that they took sample of the liquid in another bottle and seized the two bottles as per Ext.P1 mahazar. The fact that the independent witnesses, who were examined as PW1 and PW4, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW2 and PW3 in that regard. 11. Ext.P4 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that ethyl alcohol was detected in the sample. 12. The fact that a bottle containing some liquid was seized from the possession of the petitioner and that the report of chemical analysis showed that the sample sent from the court contained ethyl alcohol does not prove that the petitioner/accused had possessed any liquor or arrack. In order to establish the prosecution case against the petitioner/accused it is necessary to prove that the very same sample which was drawn from the liquid seized from her possession was forwarded to the laboratory for examination. The link between the accused and the alleged contraband article has to be established by the prosecution. **Crl.Rev.Pet.No.2904 OF 2005** **5** ## 13. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019** ## **SC 3569** , it has been 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”. 14. In the instant case, it is to be examined whether such link between the accused and the sample tested in the laboratory has been established. 15. There is a specific recital in Ext.P1 mahazar that the bottle which contained the liquid seized from the accused and also the bottle containing the sample taken were sealed and label bearing the signature of the accused was affixed on the two bottles. PW2 and PW3 have given evidence also to that effect. 16. The evidence of PW2 would show that he produced the material objects before the Excise Inspector on the same day of the occurrence. PW6 Excise Inspector has given evidence that PW2 produced the material objects and the records of the case before him and that he registered Ext.P2 crime and occurrence report. PW6 also **Crl.Rev.Pet.No.2904 OF 2005** **6** gave evidence that he produced the material objects in the court along with Ext.P3 forwarding note prepared for sending the sample for chemical analysis. However, the description of the properties given in the crime and occurrence report prepared by PW6 does not show that they were labelled or that there was any label on them. Ext.P3 forwarding note also does not show that the bottle containing the sample, which was forwarded for chemical analysis, had any label bearing the signature of the accused on it. It creates suspicion as to whether the very same sample drawn from the liquid seized from the possession of the accused was forwarded for chemical analysis. 17. The Excise Inspector, who produced the material objects before the court, was examined as PW6. But, the property list prepared by him for producing the material objects before the court was not tendered in evidence and not marked. In such circumstances, there is no evidence to find that the very same sample drawn from the liquid found in the possession of the petitioner was produced in the court and forwarded for chemical examination and that Ext.P4 report relates to that sample. 18. The records of the case contain the property list prepared by the Excise Inspector for producing the material objects before the court. I have perused it. The description of the bottles containing the **Crl.Rev.Pet.No.2904 OF 2005** **7** sample and the residue given in the property list shows that there was seal on them. But it does not show that there was any label on them bearing the signature of the accused. Therefore, it cannot be found that very same sample which was taken from the liquid seized from the possession of the accused was produced in the court and forwarded for chemical analysis. 19. The occurrence was on the evening of 25.08.1996. The bottles containing the sample and the residue of the liquid were produced before the court only on 05.09.1996. This fact is admitted by PW6 Excise Inspector. PW6 has stated that the delay occurred on account of pressure of work in his office. 20. “Pressure of work”, is a convenient excuse or explanation offered very often for the delay in producing the material objects before the court. Such lame excuses cannot be accepted by a court of law. Specific reason has to be given for the delay. The explanation offered in this case for the delay in producing the material objects before the court cannot be accepted as satisfactory and convincing. 21. Inspite of the delay in producing the material objects before the court, there is no evidence as to who was in custody of the bottles containing the sample and the residue during the period from 25.08.1996 to 05.09.1996. PW2 has given evidence that he had **Crl.Rev.Pet.No.2904 OF 2005** **8** sealed the bottles containing the sample and the residue with his personal seal “K.U.R”. However, Ext.P1 mahazar does not mention that the personal seal of PW2 was used for sealing the bottles containing the sample and the residue of the liquid. Ext.P1 mahazar also does not bear the specimen impression of the seal. In such circumstances, tampering of the sample and the liquid cannot be ruled out, especially in the absence of any convincing explanation given by PW6 Excise Inspector for the undue delay of ten days in producing the sample before the court and also in the absence of any evidence adduced by the prosecution as to who was in custody of the material objects during the aforesaid ten days. 22. The above mentioned vital aspects have not been considered by the trial court and the appellate court while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the trial court, which stands affirmed by the appellate court, cannot be sustained. The petitioner/accused is entitled to be acquitted. 23. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence punishable under Section 58 of the Abkari Act, which stands affirmed by the appellate court, is set aside. The **Crl.Rev.Pet.No.2904 OF 2005** **9** petitioner is found not guilty of the aforesaid offence and she is acquitted. The bail bond executed by her is cancelled and she is set at liberty. Fine amount, if any, remitted by her shall be refunded to her. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn