Janardhanan Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934** **Crl.Rev.Pet.No. 76 of 2003 ( )** **-----------------------------CRA.190/2000 of III ADDL.D.C., KOLLAM CC.622/1997 of J.M.F.C.-II,KOTTARAKKARA** **REVISION PETITIONER(S):** **----------------------** **JANARDHANAN PILLAI, S/O. NARAYANA PILAI, VASANTHA VILASATHIL CHEPRA MURI, UMMANNOOR VILLAGE.** **BY ADV. SRI.S.RAJEEV** **COMPLAINANT(S):** **---------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SEEMA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** S.SIRI JAGAN, J. ================== Crl.R.P.No. 76 of 2003 ================== Dated this the 30[th] day of October, 2012 O R D E R The petitioner is the accused in C.C.No. 622/1997 before the Judicial First Class Magistrate's Court-II, Kottarakkara. He was prosecuted for offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case was as follows:- On 6.1.1997, at about 11.30 a.m., the accused was found transporting two litres of illicit arrack in a plastic can of five liters capacity, along the public road through Chepra Pallimukku to Pazhinjam in front of the house of one Pappachan, July Bhavanam in Ummannoor village, Kottarakkara Taluk. The prosecution sought to prove their case by examining PWs 1 to 5 and marking Exts.P1 to P5 documents and MO1. After trial, the Magistrate convicted the petitioner and sentenced him to undergo rigorous imprisonment for a period of two years with a default sentence of six months' simple imprisonment and to pay a fine of ` 25,000/-. The petitioner challenged the judgment of the Magistrate before the III[rd] Additional Sessions Judge, Kollam in Criminal Appeal No.190/2000. The Additional Sessions Judge dismissed the appeal confirming both the conviction as well as the sentence. Crl.R.P.76/03 - : 2 :- The petitioner is challenging the judgments of the courts below in this Criminal Revision Petition. 3. The main contention raised by the petitioner is that there is unexplained inordinate delay in producing the contraband before the court and that there is no evidence regarding the fact that the sample sent for analysis by the Chemical Examiner is the sample taken from the seized contraband article. The learned counsel for the petitioner points out that the seizure was on 6.1.1997, whereas the contraband was produced before the court only on 15.3.1997. It is also submitted that there is not even an attempt to explain the long delay. It is further pointed out that there is no evidence adduced by the prosecution as to under whose custody the contraband was, during the period from 6.1.1997 to 15.3.1997. There is also no evidence to show that it was the sample taken from the socalled contraband which was sent for chemical analysis. There is no evidence as to who took the sample and who sent it for chemical analysis. The forwarding note is also not in evidence. Therefore, according to the petitioner, the prosecution has miserably failed to prove their case with any amount of certainty, Crl.R.P.76/03 - : 3 :- regarding the contraband and the guilt of the petitioner. The petitioner relies on the following decisions of this Court in support of his contention: - (a) **Narayani v. Excise Inspector** , 2002 (3) KLT 725, - (b) **Sasidharan v. State of Kerala** , 2007 (1) KLT 720, - (c) **Joseph v. State of Kerala** , 2009 (4) KHC 537, - (d) **Ravi v. State of Kerala** , 2011 (3) KLT 353, and - (e) **Lalitha v. State of Kerala** , 2012 (1) KLT 550. The learned counsel for the petitioner, therefore, argues for acquitting the petitioner on that ground. 4. The learned Public Prosecutor submits that in order to derive benefit from the delay in production of the contraband before the court, the petitioner has to prove not only delay but also prejudice because of the delay. She points out that as is clear from the judgment of the Magistrate, during the arguments, the petitioner did not raise any contention regarding delay or prejudice caused to the petitioner on account of the delay. It is also pointed out that this fact has been specifically stated so by the Magistrate in paragraph 18 of the judgment. The first time the petitioner raised this contention is only during the Crl.R.P.76/03 - : 4 :- appellate stage. It is submitted that the Magistrate has observed that not a single question was put by the petitioner to the witnesses regarding the delay in production of the sample and the material object before the court. Therefore, according to the learned Public Prosecutor, delay cannot be held out as a reason for acquitting the petitioner. It is submitted that there is sufficient evidence adduced in the case to prove the guilt of the petitioner beyond a reasonable doubt. 5. I have considered the rival contentions in detail. 6. The facts that the seizure of the contraband was on 6.1.1997 and the production of the same before the Magistrate was on 15.3.1997 are not disputed in this case. No attempt has been made by any of the witnesses to explain the unusual and inordinate delay in production of the contraband before the Magistrate. No sample was taken and sealed from the contraband at the time of seizure. In fact, there is no evidence at all as to who actually made the sampling for forwarding it to the Chemical Examiner. There is no evidence to prove in whose custody the contraband article was, during the period from 6.1.1997 to 15.3.1997. Forwarding note for forwarding the same Crl.R.P.76/03 - : 5 :- for chemical analysis has not been marked in this case. There is no evidence to show that the sample taken from the contraband produced before the Magistrate was the one sent for chemical analysis. All these grounds have been held to be sufficient grounds to acquit the accused in the decisions referred to by the learned counsel for the petitioner. The decision in **Narayani's case** (supra), a learned Judge of this Court has held that in the absence of any evidence to prove that the residue and sample were kept in the proper custody till the date of production of the same before the court, the chance of tampering with the sample taken and the residue seized cannot be ruled out. On that ground, in that case, the accused was acquitted. In **Sasidharan's case** (supra), a learned Judge of this Court has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused, which had reached the hands of the Chemical Examiner in a fool-proof condition. In the absence of such evidence, in that case, the accused was acquitted. In **Lalitha's case** (supra), a learned Judge of this Court held that in the absence of any evidence as to who took the sample, no reliance can be given to Crl.R.P.76/03 - : 6 :- the report of the Chemical Examiner to conclude that the liquid is arrack. In **Joseph's case** (supra), a learned Judge of this Court has acquitted the accused in the absence of production or marking of the forwarding note to indicate that a request was made to the Magistrate to send the sample bottle to the Chemical Examiner for analysis. In **Ravi's case** (supra), a Division Bench of this Court has held that when there is a delay of more than 16 days in production of the contraband article before the court, there is possibility that the properties would have been tampered with. It was held in that case that the prosecution in a case of such a nature can succeed only if it is shown that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. I am of opinion that the facts noted above by me are clearly within the mischiefs coming within the purview of the decisions quoted above, which are sufficient to enter a verdict of acquittal in this case. 7. Of course, the Magistrate has in his judgment specifically stated that the delay was not raised as a contention Crl.R.P.76/03 - : 7 :- by the accused in his defence. But from the cross-examination of the witnesses I find that sufficient suggestions have been put to the witnesses in respect of the prejudice on account of the defaults of the prosecution which are noted above. As I have already stated, no sampling was done by the Excise officers. There is no indication that the sampling was done by the court clerk. Forwarding note for forwarding the sample to the Chemical Examiner has not been produced or marked. The crossexamination of the Excise officers shows that the petitioner has a definite case that the contraband was one which was available in the Excise office, which was filled up in a can and produced before the court and not the one seized from the petitioner. It is for the prosecution to prove the case against the accused beyond a reasonable doubt. 8. In this case, apart from the deposition of the official witnesses, there is no other evidence to prove the case. The mahazar witnesses examined on behalf of the prosecution totally denied that it was in their presence that the contraband was seized. They even denied that the signature in the mahazar are theirs. They stated that they had not seen the mahazar at all at Crl.R.P.76/03 - : 8 :- any time. I am of opinion that on those facts, it is not safe to convict the petitioner at all. There is no proof warranting conviction of the petitioner in the light of the decisions referred to above. Therefore, I am completely satisfied that the petitioner is entitled to an acquittal in this case. Accordingly, the judgments of the courts below are set aside. The petitioner is acquitted of the offence charged against him. His bail bond is cancelled. The Criminal Revision Petition is allowed as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge Crl.R.P.76/03 - : 9 :- S.SIRI JAGAN, J. ================== Crl.R.P.No. 76 of 2003 ================== O R D E R 30[th] October, 2012