Madhu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** **Crl.Rev.Pet.No.77 OF 2015** **AGAINST THE JUDGMENT IN SC 792/2009 DATED 29-09-2012 OF ASSISTANT SESSIONS COURT, MAVELIKKARA AND THE JUDGMENT IN CR.A.NO.334/2012 DATED 20-11-2014 OF ADDITIONAL SESSIONS JUDGE-I, MAVELIKKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MADHU AGED 41 YEARS S/O.RAGHAVAN NAIR, GEETHALAYAM, CHUNNAKKARA, MAVELIKKARA** **BY ADVS. SRI.R.SUNIL KUMAR SRI.NISHIL.P.S. SMT.A.SALINI LAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.07.2020, THE COURT ON 10.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.77/2015 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.77 of 2015 ------------------------------------------Dated this the 10[th] day of July, 2020 ## **O R D E R** The petitioner is the accused in the case S.C.No.792/2009 on the file of the Court of the Assistant Sessions Judge, Mavelikkara. 2. The prosecution case is that, on 15.09.2008, at about 20:00 hours, at the public road near Kottamukku Junction at the place Chunakkara, PW1 Excise Inspector found the petitioner/accused with a can containing one litre of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The petitioner/accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW3 and marked Exts.P1 to P6 documents and MO1 material object. No evidence Crl.R.P.No.77/2015 3 was adduced by the accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.334/2012 before the Court of Session challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner but modified the sentence imposed on him by the trial court and reduced the substantive sentence of imprisonment to rigorous imprisonment for a period of three months. 7. Aggrieved by the concurrent verdicts 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. Crl.R.P.No.77/2015 4 9. PW1 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the Preventive Officer 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. 10. PW3 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. 11. Ext.P6 is the chemical examination report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 21.17% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult to sustain the conviction entered against the petitioner/accused by the trial court. The reasons are as follows. Crl.R.P.No.77/2015 5 13. PW1 has given evidence that he took sample of the liquid contained in the can and that he affixed the personal seal of the Preventive Officer (PW2) on the can and the sample bottle and that he affixed label, bearing the signature of himself and the witnesses and the accused, on the can and the sample bottle. PW1 and PW2 identified MO1 can in the court as the can containing liquid which was seized from the possession of the accused. 14. However, it has come out in the cross-examination of PW1 that there was no legible seal on MO1 can and that there was no label on it at the time of the trial of the case. The occurrence was on 15.09.2008. PW1 and PW2 were examined before the trial court in the month of September, 2012. Every such can would look alike. It cannot be believed that, after four years of the occurrence, without any marks of identification on the can, PW1 and PW2 were able to identify MO1 in the court as the very same can which was seized from the possession of the accused. Identification of MO1 can by PW1 and PW2 in the court as the very same can seized from the possession of the accused Crl.R.P.No.77/2015 6 does not inspire confidence. 15. PW1 has given evidence that he produced the properties before the court as per Ext.P5 property list. According to PW1, he had produced the properties before the court on the next day of the occurrence. The occurrence was on 15.09.2008. Ext.P5 property list bears the initials of the Magistrate with the date 17.09.2008. The delay in producing the properties, including the sample, before the court is not explained by the prosecution. 16. There is also no evidence to find that the very same sample allegedly drawn by PW1 at the spot of the occurrence from the liquid contained in MO1 can which was allegedly seized from the possession of the accused was forwarded for chemical analysis. The reason is that the copy of the forwarding note, which should have been prepared by PW1 for sending the sample for analysis, is not marked in evidence. PW1 has not even given any evidence that he had made request to the court to send the sample for analysis. 17. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles Crl.R.P.No.77/2015 7 containing the sample. 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 sample 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** ). 18. PW1 had detected the offence. He also conducted the investigation of the case and filed final report against the accused. Detection of the offence as well as the investigation of the case by the same officer, in the circumstances mentioned earlier, had caused prejudice to the accused. 19. The trial court as well as the appellate court has not taken into consideration the aforesaid aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. 20. Consequently, the revision petition is allowed. Conviction and sentence entered against the petitioner/accused Crl.R.P.No.77/2015 8 for the offence punishable under Section 8(1) read with 8(2) 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** jsr True Copy PS to Judge