M. Sheriff 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.1129 OF 2008** **AGAINST THE JUDGMENT IN CRA 91/2004 DATED 18-10-2007 OF ADDITIONAL SESSN.COURT (ADHOC-II)KASARAGODE** **AGAINST THE JUDGMENT IN SC 504/2000 DATED 06-02-2004 OF ASST.SESSIONS JUDGE, HOSDRUG** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **M.SHERIFF** **SON OF KASSANKUNHI, MANEL VEEDU, BALLA KADAPPURAM, BALLA VILLAGE, PO KANHANGAD, HOSDURG TALUK.** **BY ADV. SRI.MURUGAN P.V.** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** **Crl. R.P No. 1129 of 2008** 2 ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.1129 of 2008** **--------------------------------------------** Dated this the 3[rd ] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No. 504/2000 on the file of the Court of the Assistant Sessions Judge, Hosdrug. 2. The prosecution case is that, on 20.09.1998, at about 22:30 hours, at the road near Kanhangad Railway Station, PW1 Circle Inspector found the petitioner/accused in possession of two boxes which contained a total of 95 bottles of Indian Made Foreign Liquor. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P6 documents and MO1 to MO3 series material objects. DW1 and DW2 were examined on the side of the accused. 5. The trial court found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of ## **Crl. R.P No. 1129 of 2008** 3 payment of fine, to undergo simple imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.91/2004 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner. The appellate court did not interfere with the sentence of fine imposed on the petitioner by the trial court but modified the substantive sentence of imprisonment imposed on him as simple imprisonment for a period of one year and also directed that the default sentence shall be simple imprisonment for a period of six 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 accused has filed this revision petition. 8. Heard. Perused the records. 9. PW1 is the Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the police constable who was in the police party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. ## **Crl. R.P No. 1129 of 2008** 4 10. PW3 is only an attestor to Ext.P3 scene mahazar. PW4 is the Village Officer who prepared and issued Ext.P4 sketch with regard to the scene of the occurrence. PW5 is the Sub Inspector who conducted the investigation of the case. PW6 is the Sub Inspector who completed the investigation and filed final report against the accused. 11. Ext.P6 is the chemical examination report received in respect of the samples which were forwarded for analysis. It shows that all the four samples which were forwarded for chemical analysis contained 41.10% 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 by the trial court. The reasons are as follows. 13. PW1 Circle Inspector has given evidence that he saw the accused with two boxes and that he inspected the boxes and found 95 bottles of Indian Made Foreign Liquor in them. PW1 has given evidence that he arrested the accused at the spot of the occurrence. 14. PW1 has specifically stated on cross-examination that he arrested the accused at 22:35 hours and that he had prepared arrest memo. During the cross-examination of PW1, the evidence of PW1 that he arrested the accused at the spot of the occurrence, was ## **Crl. R.P No. 1129 of 2008** 5 specifically challenged by the defence. Inspite of such challenge, the prosecution has not produced and marked the arrest memo allegedly prepared by PW1 at the spot of the occurrence. This creates suspicion as to whether the accused was arrested by PW1 from the spot of the occurrence and whether seizure of liquor was effected from the possession of the accused in the manner alleged by the prosecution (See **Ramankutty v. Excise Inspector : 2013 (3) KHC 308** ). 15. PW1 has given evidence that he took four bottles of liquor, two bottles each from two boxes, as samples and that he sealed the sample bottles. Ext.P1 seizure mahazar also contains a recital that the sample bottles were sealed at the spot of the occurrence. However, PW1 has not given evidence as to the nature of the seal used by him for sealing the sample bottles. The specimen of the seal used by him is also not seen affixed on Ext.P1 seizure mahazar. 16. PW1 has given evidence that he entrusted the accused and the properties at the Hosdurg Police Station. PW5 Sub Inspector has given evidence that he produced the properties before the court as per Ext.P5 property list. He did not state the date on which the properties were produced before the court. Ext.P5 property list shows that the properties, including the samples, were produced before the court only on 03.10.1998. The occurrence was on 20.09.1998. There was a delay ## **Crl. R.P No. 1129 of 2008** 6 of 13 days in producing the properties, including the samples, before the court. 17. PW5 Sub Inspector has stated on cross-examination that, when there is no space in the court to store the properties, there would be delay on the part of the court in receiving the properties. This explanation given by PW5 for the delay in producing the properties before the court is not at all convincing. The property clerk of the Magistrate's Court concerned was not examined by the prosecution to prove that the properties were produced before the court immediately after the seizure but it was returned as there was no space in the court for keeping the properties. 18. Decisions are umpteen which hold that inordinate and 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. 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 ## **Crl. R.P No. 1129 of 2008** 7 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 unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 20. There is no evidence as to who was in custody of the properties, including the samples, till they were produced before the court. There is also no evidence as to how and in what manner 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 when the evidence is that they were kept in the police station, 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** ). In the instant case, there is no evidence adduced by the prosecution to show how and in what conditions the samples were kept at the police station during the period of 13 days from the date of the alleged occurrence till the date ## **Crl. R.P No. 1129 of 2008** 8 they were produced in the court. 21. PW5 Sub Inspector has given evidence that he had prepared requisition (forwarding note) for sending the samples for chemical analysis and submitted it before the court. However, the copy of the forwarding note is not marked in evidence. In the absence of the copy of the forwarding note in evidence, the court is not in a position to verify and ascertain whether the specimen of the seal which was allegedly affixed by the detecting officer on the sample bottles had been provided in the forwarding note so as to enable the chemical examiner to compare it with the actual seal affixed on the sample bottles. 22. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). PW5 has stated on cross-examination that PW1 Circle Inspector had not produced the specimen of the seal before him. Therefore, there is no chance that the specimen of the seal which was affixed on the ## **Crl. R.P No. 1129 of 2008** 9 sample bottles was provided in the forwarding note. 23. In the aforesaid circumstances, there is no assurance that the very same samples allegedly taken by PW1 at the spot of the occurrence were forwarded for analysis and that Ext.P6 chemical examination report relates to the very same samples. 24. In cases of this nature, the sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569)** 25. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects in appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner/accused cannot be sustained. 26. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 55(a) of the Abkari Act are 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