K. Yesoda v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH DAY OF NOVEMBER 2011/18TH KARTHIKA 1933 Crl.Rev.Pet.No. 518 of 2003 ( ) ------------------------------CRA.36/1999 of COURT OF ADDL. SESSIONS JUDGE,THALASSERY CC.360/1996 of J.M.F.C.,KUTHUPARAMBA REVISION PETITIONER(S)/APPELLANT/ACCUSED:: ------------------------------- K. YESODA, D/O. KUNHIKANNAN, 50 YEARS, KARUVATH HOUSE, KUTHUPARAMBA AMSOM MOORIYAD DESOM, KANNUR DISTRICT. BY ADVS.SRI.P.P.RAMACHANDRAN SRI.SHEJI P.ABRAHAM RESPONDENT/ RESPONDENT/COMPLAINANT(S): --------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PADMALOCHANAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.R.P.No.518 of 2003 ---------------------------Dated 9[th] November, 2011 ## **ORDER** The concurrent findings of guilt, conviction and sentence imposed on the revision petitioner under section 55(a) of the Abkari Act is challenged in this revision petition. The revision petitioner was the sole accused in C.C.No.360 of 1996 on the file of the Judicial First Class Magistrate, Kuthuparamba was found guilty and convicted thereunder. For the conviction under section 55(a) of the Abkari Act he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of three months. Feeling aggrieved by the conviction and sentence, the revision petitioner had preferred Crl.A.No.36 of 1999 and the the appellate court as per the impugned judgment confirmed the conviction under section 55(a) of the Abkari Act but, modified the sentence. While maintaining the sentence of fine imposed by the trial court the sentence of rigorous imprisonment was reduced from six months to three months. ## 2. The case of the prosecution is as follows:- On 22.9.1995 at about 11 a.m. the revision petitioner/accused was found transporting five litres of illicit arrack in a Crl.R.P.No.518/2003 2 black plastic can having a capacity of 10 litres when the excise party led by PW2, the Excise Inspector, Kuthuparamba Excise Range, searched the bus bearing registration No.KL-13.B. 2786. She was then, tried for the offence under section 55(a) of the Abkari Act. Upon finding her guilty she was convicted and sentenced as aforesaid. In the appeal, as per the impugned judgment, the conviction was confirmed but, the sentence was modified, as aforesaid. This revision petition has been filed in the aforesaid circumstances. 3. According to the learned counsel for the revision petitioner, failure to consider a point of vital importance by the trial court as also by the appellate court resulted in grave failure of justice. The incident allegedly occurred on 22.9.1995. According to the learned counsel, the contraband articles were produced before the court along with a property list. So also it is contended that there is no material on record to show the date on which the contraband articles and also the sample were produced before the court. Relying on the oral evidence of PW2, it is contended that there is delay in producing the sample as also the contraband articles before the court. In that context, the learned counsel drew my attention to the finding of the appellate court that there is delay in the said matter. However, that point was not actually given Crl.R.P.No.518/2003 3 due consideration, in accordance with the law established on that point. It is contended that on that sole score the petitioner is entitled to succeed in this revision petition. To buttress the said contention , the learned counsel relied on a decision of this Court in _**Rajendran**_ v. _**State of Kerala**_ (2007 (1) KLT 971) and also the decision of a Division Bench of this Court in _**Ravi**_ v. _**State of Kerala and another**_ (2011 (3) KHC 121). I will look into the sustainability of the said contention made relying on the aforesaid judgments. Necessarily, the question to be considered is whether there occurred unexplained delay in producing the contraband articles, including the sample, before the court. In that context, it is relevant to advert to the oral evidence of PW2. PW2 is the detecting officer. He deposed in the cross examination as hereunder:- “ÎÙTV 22Èí ¥Ïºîá.åºÞV¼í ×àxßæa µâæ¿ ¥Ïºîá.R....QÎÙTV 5 ÎÞØ¢ µÝßEÞÃí çµÞ¿ÄßÏßW ¥ÏAáKÄíRå....Q Éß¿ßæºî¿áJ ” . ØÞÇÈB{ᢠºÞV¼í ×àxßçÈÞ¿MÎÞÃí ÙÞ¼øÞAßÏÄí 4. Essentially, it must have been the said portion of the oral evidence of PW2 that constrained the appellate court to observe that there is delay in the matter of production of contraband articles, including the sample, before the court in paragraph 6 of the judgment. It is a settled position of law that if there is delay in the matter of Crl.R.P.No.518/2003 4 production of contraband articles before the court, when once it is seized, it is mandatory for the prosecution to explain the delay. That is because, any delay in the matter of production of properties before the court would give room for tampering. Therefore, essentially, it is for the prosecution to explain the delay satisfactorily. As admitted by PW2, in this case the delay occurred is of 5 months. In this case, there is no explanation at all, for the said long delay. A scanning of the judgment of the trial court would reveal that there was absolute absence of any discussion on this vital and fatal aspect of delay. The judgment in the appeal would reveal that the said point was taken up pointedly, before that court by the revision petitioner herein and after perusing the records the appellate court lightly observed that there was some delay in producing the sample and residue in court after detection of the offence. It is so evident from paragraph 11 of the judgment. Even after finding such a delay, the appellate court held that a mere delay as such is not a ground for a mechanical acquittal, in the absence of evidence to show that there was the possibility of some sort of tampering due to the said delay. In this case, there is absolutely no evidence or material to show that there was occasion or reason for any sort of tampering during the period between the detection of the offence and the seizure of the articles and the production of the contraband articles in court. At the Crl.R.P.No.518/2003 5 same time, admittedly, no evidence whatsoever was adduced by the prosection to show that the sample and residue had not been in proper custody of a responsible officer during the said period. But the appellate court found that In the absence of any evidence or material to show that there had been occasion or chance for some sort of tampering during the said period, the accused is not entitled for acquittal on the mere ground of delay in the production of the contraband properties in court. The findings of the appellate court would definitely show that there occurred delay in the matter of production of sample and also residue in court, after detection of the offence. When once it is so found, the question whether the burden cast upon the prosecution to satisfactorily explain the delay was discharged or not cannot be lightly taken. Evidently, in the case on hand that question was never addressed by the trial court despite the evidence regarding the delay. The question whether it was explained satisfactorily was not at all considered by the appellate court despite the clear finding of delay in the matter of production contraband articles before the court. It is in the said context that the decision relied on by the learned counsel for the revision petitioner assumes relevance. It is a case wherein the evidence of PW2 would in unambiguous terms shows the delay of 5 months in that matter and there is absolute absence of any explanation for the said delay. What is the impact of the Crl.R.P.No.518/2003 6 unexplained delay in such circumstances ? It is also curious to note that even after finding that there was delay in the matter of production of sample and residue after they were taken, the appellate court considered the said point and entered into a finding thereon as if the onus is on the accused to prove that the contraband articles, including the sample, were not kept in safe custody or that there was chance for some sort of tampering during the said period. The appellate court proceeded as if it is for the accused to prove that there was chance for tampering. In the decision reported in **2007 (1) KLT 971** (supra) clause (e) of Rule 17 of the Chemico-Legal Examination Rules was taken note of. It provides as hereunder:- _“Excise Officers shall forward articles seized under the provisions of the Abkari Act in force through the Magistrates within whose jurisdiction the offence has been committed.”_ In the absence of any evidence to show the date on which the sample and the other contraband articles were sent to the court, it is for the prosecution to prove that the contraband articles including the sample were kept in safe custody. No evidence was adduced by the prosecution to show that prior to the production of contraband articles including the sample they were in safe custody. In this context, the evidence of PW2 Crl.R.P.No.518/2003 7 assumes relevance. Going by the oral evidence of PW2, the properties were produced before the court only along with the charge sheet. The mahazar, the charge sheet and the contraband articles were produced before the court only after five months from the date of seizure. It is further evident from the oral evidence of PW2 that the requisition for sending the sample for chemical analysis viz., Ext.P6 was made only on 22.2.1996. In view of the said admitted position obtained in this case, I have no hesitation to hold that the petitioner is perfectly justified in contending that the delay in production of the sample and the residue before the court after its detection is fatal to the prosecution. In the decision reported in **2007 (1) KLT 971** (supra) it was held that, in the absence of any evidence to prove that sample and residue were kept in 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. The said position is reiterated in _**Damodaran**_ v. _**Station House Officer**_ (2008 (1) KLT SN 18). In _**Ravi**_ v. _**State of Kerala and another**_ (supra) the Division Bench held that inordinate delay in the production of properties before the concerned court and want of a proper explanation for the said delay are fatal to the prosecution. As already noticed herein before, the appellate court had actually found that there is delay in the matter of production of residue Crl.R.P.No.518/2003 8 as also sample after detected. The above extracted portion from the oral evidence of PW2 would support the said finding. Even after entering into such a clear finding the appellate court did not appreciate the said point in the light of the established law on that point instead, held that in the absence of any material or evidence to show that there was actual tampering or possibility of tampering, the revision petitioner is not entitled to get any automatic acquittal. In that context, it is to be noted that the Division Bench in the decision in **Ravi's Case (Supra)** . held that when once that point is found in favour of an accused, he is entitled to get an acquittal on that short ground. As already noticed herein before, the appreciation of evidence by the appellate court in the said circumstances can only be said to be perverse. The law established on the aforesaid point was not actually considered by the appellate court and in fact, the said issue was appreciated inconsistent with the established law. When that be the position, I am of the considered view that this is a fit case wherein this Court should exercise the revisional power. Merely because the findings of the trial court as also the appellate court are concurrent that cannot attach any infallibility on such findings. When a point of vital importance has not been given due consideration and such failure resulted in miscarriage of justice, certainly it invites interference by this Court. In the circumstances, the revision Crl.R.P.No.518/2003 9 petitioner is entitled to succeed. In the result, the conviction entered against the revision petition under Section 55 (a) of the Abkari Act and the sentence imposed on the revision petitioner for the said conviction by the courts below are set aside Accordingly, the revision petitioner is not found guilty of the offence and is consequently, acquitted. The bail bond, if any, will stand cancelled. Sd/C.T.RAVIKUMAR Judge TKS