Madhu 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.305 OF 2005(C)** **AGAINST THE JUDGMENT IN CRA 153/2001 DATED 27.11.2004 OF ADDITIONAL DISTRICT AND SESSIONS (ADHOC) FAST TRACK COURTIII, PATHANAMTHITTA** **CC 1068/1997 DATED 04-10-2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS,THIRUVALLA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MADHU AGED 35 YEARS S/O RAMAKRISHNAN,OTTAKKUZHI VEEDU, MUTHOOR MURI,, KUTTAPPUZHA VILLAGE.** **BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.305/2005 2 ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.R.P No. 305 of 2005** ----------------------------------------------------Dated this the 3[rd ] day of August, 2020 ## **O R D E R** The revision petitioner is the first accused in the case C.C No. 1068/1997 on the file of the Court of the Judicial First Class Magistrate, Thiruvalla. 2. On 27.06.1996, at about 18:00 hours, the Preventive Officer of the Thiruvalla Excise Range conducted search of the toddy shop T.S.No.20/96-97. The excise party found a plastic bag in the kitchen room of the toddy shop. On examination of the plastic bag, it was found that it contained 25 plastic covers, each having the capacity of 100 ml, full of arrack. The Preventive Officer seized the arrack and arrested the petitioner who was present in the toddy shop. The first accused was the salesman and the second accused was the licencee of the toddy shop. They committed an offence punishable under Section 55(i) of the Abkari Act, 1077. This is the prosecution case. 3. The two accused in the case pleaded not guilty to the offence punishable under Section 55(i) of the Abkari Act. The prosecution examined PW1 to PW5 and marked Exts.P1 to P4 Crl.R.P.No.305/2005 3 documents and MO1 series material objects. No evidence was adduced by the accused. 4. The trial court found the second accused not guilty of the offence punishable under Section 55(i) of the Abkari Act and acquitted him. The trial court found the petitioner, the first accused in the case, guilty of the offence punishable under Section 55(i) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/and in default of payment of fine, to undergo simple imprisonment for a period of three months. 5. The petitioner filed Crl.A.No.153/2001 before the Court of Session, Pathanamthitta challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 6. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the first accused has filed this revision petition. 7. Heard the learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 8. PW1 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the Crl.R.P.No.305/2005 4 excise guard who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 9. PW3 and PW4 are the independent witnesses examined by the prosecution. They admitted their signature in Ext.P1 seizure mahazar. However, they have not given any evidence to the effect that they saw the excise party seizing arrack from the toddy shop. 10. Ext.P4 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 33.05% by volume of ethyl alcohol. 11. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 12. PW1 has given evidence that he sealed the thondy articles at the spot of the occurrence. He has not given any evidence as to what was the thondy article sealed by him, whether it was the plastic bag or whether the plastic covers which were found inside the plastic bag. 13. PW1 has given evidence that he produced the seized articles before the Excise Inspector. PW5 Excise Inspector has given evidence that he prepared Ext.P3 crime and occurrence report. He has also given evidence that he produced the seized articles before the court. Crl.R.P.No.305/2005 5 14. The description of the articles seized, which is given in Ext.P3 report, does not show that the plastic covers containing the arrack or the plastic bag which contained the plastic covers had been sealed. 15. The property list prepared by PW5 Excise Inspector for producing the seized articles before the court was not marked in evidence. The records of the case contain the property list. I have perused it. It shows that there was no seal on the seized articles produced before the court. 16. The property list shows that the seized material was produced before the court only on 23.07.1996. The occurrence was on 27.06.1996. The delay in producing the seized material before the court has not been explained by the prosecution. 17. The evidence of PW1 shows that no sample from the liquid contained in the plastic covers was drawn at the spot of the occurrence. There is also no evidence to find that sample was drawn after the plastic covers containing the liquid were produced before the court. The property clerk of the Magistrate's Court concerned was not examined. No evidence was adduced by the prosecution regarding drawing of sample from the contraband substance allegedly seized from the toddy shop. The forwarding note, which should have been prepared for sending the sample for analysis, was also not tendered in Crl.R.P.No.305/2005 6 evidence and it was not marked. Therefore, there is absolutely no evidence to find that Ext.P4 chemical examination report relates to any sample which was drawn from the liquid contained in the plastic covers seized from the toddy shop. 18. In these types of cases, mere production of a laboratory report that sample tested was contraband substance does not prove anything against the accused. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 19. There is also no reliable evidence to find that the petitioner, the first accused in the case, had in any manner dealt with the plastic covers which allegedly contained arrack. The evidence of PW1 to PW4 would only show that the petitioner was present in the toddy shop when the excise party conducted the search there. There is absolutely no evidence to find that the petitioner had in any manner dealt with any of the plastic covers containing liquid which were found in the toddy shop. PW1 and PW2 have not given any evidence that they saw the petitioner in any manner dealing with the plastic covers containing the liquid. The mere presence of the petitioner in the toddy shop does not mean that he was the salesman of the toddy shop or that he had in any manner dealt with the liquid contained in the plastic covers which were kept in the toddy shop. Crl.R.P.No.305/2005 7 20. PW1 has stated in examination-in-chief that, the petitioner who possessed the arrack, was present in the toddy shop. PW1 has not given any evidence as to the manner in which the petitioner possessed the liquid contained in the plastic covers. He has stated on cross-examination that the petitioner was the person who was conducting the toddy shop. There is absolutely no documentary evidence to show that the petitioner was the salesman or the contractor or the licencee of the toddy shop. If the petitioner was the salesman of the toddy shop, there would have been documents in that regard in the Toddy Welfare Fund Office. The prosecution did not care to produce any such document before the court. 21. The courts below have misread the evidence adduced by the prosecution to find that the petitioner was the salesman of the toddy shop and that he was in possession of the liquid contained in the plastic covers which were found in the toddy shop. In such circumstances, conviction entered against the petitioner cannot be sustained. 22. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/first accused by the trial court under Section 55(i) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/first accused is found not guilty of the aforesaid offence and he is Crl.R.P.No.305/2005 8 acquitted. The bail bond executed by him stands cancelled and he is set at liberty. (sd/-) **R. NARAYANA PISHARADI JUDGE** ## **lsn** **True Copy** **PS to Judge**