Harish s/o Narayani v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** **Crl.Rev.Pet.No.569 OF 2007** **AGAINST THE JUDGMENT IN CRA 349/2005 DATED 21-12-2006 OF SESSIONS COURT, KASARAGOD** **AGAINST THE JUDGMENT IN SC 922/2000 OF ASSISTANT SESSIONS COURT, HOSDRUG** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **HARISH, S/O.NARAYANI, KOVVAL, PADIKKIL, KODAKKAD VILLAGE.** **BY ADV. SMT.T.SUDHAMANI** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.569/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.569 of 2007 ------------------------------------------Dated this the 3[rd] day of August, 2020 ## **O R D E R** The revision petitioner is the first accused in the case S.C.No.922/2000 on the file of the Court of the Assistant Sessions Judge, Hosdurg. 2. On 26.05.2000, PW5 Sub Inspector was checking vehicles at the road in front of Cheemeni Police Station. At about 21.00 hours, the police party stopped the autorickshaw KL-14A 1746 which came by that road. PW5 inspected that vehicle. He examined the contents of the can which was held by the passenger of the autorickshaw and it was found that it contained five litres of arrack. PW5 arrested the driver and the passenger of the autorickshaw and seized the can containing the arrack. The first accused was the passenger of the autorickshaw and the second accused was its driver. This, in short, is the prosecution Crl.R.P.No.569/2007 3 case. 3. The trial court framed charge against both accused for the offence punishable under Section 55(a) of the Abkari Act. Both accused pleaded not guilty to the offence and they claimed to be tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P10 documents and MO1 material object. No evidence was adduced by the accused. 5. The trial court found both accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder and sentenced them to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of three months each. 6. Both accused filed separate appeals before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against them by the trial court. The appellate court allowed the appeal filed by the second accused and acquitted him of the offence. The appellate court confirmed the Crl.R.P.No.569/2007 4 conviction entered against the petitioner, the first accused in the case, by the trial court but modified the sentence imposed on him and reduced the substantive sentence imposed on him by the trial court to simple imprisonment for a period of three months. 7. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the first accused has filed this revision petition. 8. Heard. Perused the records. 9. PW5 Sub Inspector has given evidence regarding the occurrence in detail. PW1 is the police constable who was in the police party led by PW5. His evidence corroborates the testimony of PW5 with regard to the material particulars of the occurrence. 10. PW2 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. Crl.R.P.No.569/2007 5 11. Ext.P10 is the chemical analysis report received in respect of the samples which were forwarded for analysis. It shows that the two samples contained 26.82% and 26.75% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and also the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 13. PW5 Sub Inspector has given evidence regarding the seizure of the can containing arrack from the possession of the petitioner who was the passenger of the autorickshaw. He has also given evidence that he took two samples from the liquid contained in the can which was held by the petitioner. He has also deposed that he produced the material objects in the court as per Ext.P8 property list. 14. PW5 has categorically stated in the cross-examination that he forwarded the properties to the court only on 30.05.2000. The occurrence was on 26.05.2000. Ext.P8 property list also shows that the properties, including the Crl.R.P.No.569/2007 6 samples, were produced before the court only on 30.05.2000. There was a delay of four days in producing the samples and the can before the court. 15. PW5 Sub Inspector has stated that the properties were in the custody of the station writer till they were produced in the court. However, PW5 has not offered any explanation for the delay occurred in forwarding the properties, including the samples, to the court. 16. Decisions are umpteen which hold that unexplained delay in producing the samples of the contraband substance before the court creates suspicion that the samples have been tampered with. The possibility of tampering or meddling with the samples cannot be ruled out in such cases. 17. 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 Crl.R.P.No.569/2007 7 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 unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. In the instant case, no explanation was offered by PW5 Sub Inspector for the delay occurred in forwarding the properties to the court. 18. There is also no evidence as to how and in what conditions the properties were kept at the police station till they were produced before the court. When there is delay in producing the samples of the contraband substance in the court and the evidence is that they 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 U.P v. Hansraj @ Hansu: (2018) 18 SCC 355** ). Crl.R.P.No.569/2007 8 In the instant case, there is no evidence adduced by the prosecution as to how and in what conditions the samples were kept at the police station during the period of four days from the date of the alleged occurrence till the date they were produced in the court. 19. In the aforesaid circumstances, there is no assurance that the very same samples allegedly taken by PW5 at the spot of the occurrence were produced in the court and forwarded for analysis without any tampering. 20. Mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 21. The trial court as well as the appellate court has not properly appreciated the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner cannot be sustained. Crl.R.P.No.569/2007 9 22. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner under Section 55(a) of the Abkari Act are set aside. The petitioner 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** jsr True Copy PS to Judge