Marangattu Myalil Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 11TH DAY OF JUNE 2020 / 21ST JYAISHTA, 1942** ## **Crl.Rev.Pet.No.3343 OF 2005(C)** **CRA 214/2005 OF ADDITIONAL SESSIONS JUDGE ADHOC-II, TELLICHERRY** **SC 475/2001 OF ASSISTANT SESSIONS COURT, TELLICHERRY** ## **PETITIONER/APPELLANT/ACCUSED:** **MARANGATTU MYALIL THOMAS** **AGED 43 YEARS S/O.MATHAI, NELLIKAMPOYIL, VAYATHOOR VILLAGE, P.O.ULIKKAL, KANNUR DISTRICT.** ## **BY ADV. SRI.M.RAMESH CHANDER** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** - **2 EXCISE RANGE OFFICER MATTANNUR.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON 11.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.3343/2005 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.3343 of 2005 -----------------------------------------Dated this the 11[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.475/2001 on the file of the Court of the Assistant Sessions Judge, Thalassery. 2. The prosecution case is that, on 24.01.1999, at about 08:55 hours, the Excise Circle Inspector of the Excise Enforcement and Anti-Narcotic Special Squad, Kannur found the petitioner/accused travelling in the bus KL-13-377 with a plastic bag in his possession which contained 20 packets, each packet containing 100 ml. of arrack. 3. The trial court framed charge against the petitioner for the offence punishable under Section 55(a) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. Crl.R.P.No.3343/2005 3 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P8 documents and material objects MO1 to MO3. No oral evidence was adduced by the petitioner but the property list produced by the prosecution was marked on his side as Ext.D1. 5. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. The petitioner filed Crl.A.No.214/2005 before the Court of Session, Thalassery 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. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused in the case has filed this revision petition. 8. Heard. Perused the records. Crl.R.P.No.3343/2005 4 9. PW1 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. 10. PW2 is the conductor and PW3 is the driver of the bus in which the petitioner was allegedly travelling at the time of the occurrence. They did not support the prosecution case. They denied having seen the police party seizing any arrack from the possession of the petitioner. 11. Ext.P8 is the chemical analysis report received in respect of the sample of liquid which was sent for analysis in the laboratory. It shows that the sample of liquid contained 34.71% by volume of ethyl alcohol. 12. There are circumstances in this case to doubt whether the very same sample drawn from the liquid allegedly seized from the possession of the accused was sent for chemical analysis and whether Ext.P8 chemical analysis report relates to that sample. 13. There is a recital in Ext.P2 seizure mahazar that PW1 opened two packets of liquid and poured the liquid into a bottle Crl.R.P.No.3343/2005 5 and took it as sample and that he sealed the sample bottle and affixed label on it, bearing his signature and also the signature of the accused. PW1 has given evidence also to that effect. 14. On returning to his office, PW1 had registered Ext.P5 crime and occurrence report. The description of the sample bottle given in Ext.P5 report does not show that there was any label bearing the signature of the accused on the sample bottle. 15. The evidence of PW1 shows that he had produced the accused and the articles and the records before PW4 Preventive Officer who was in charge of the Excise Inspector of Mattannur Excise Range office. Ext.P4 is the crime and occurrence report prepared by PW4. The description of the sample bottle given in Ext.P4 report also does not show that there was any label on the sample bottle which was produced before PW4. 16. The evidence of PW4 is to the effect that he produced the material objects before the Magistrate. The prosecution did not tender in evidence the property list prepared by PW4 for producing the material objects before the court. The property list was marked as Ext.D1 at the instance of the accused. The Crl.R.P.No.3343/2005 6 description of the properties given in Ext.D1 list shows that the sample bottle produced before the court was sealed but it does not show that there was any label on it. 17. Ext.P7 is the copy of the forwarding note prepared by PW4 for sending the sample for chemical analysis. Ext.P7 forwarding note shows that the sample forwarded was sealed and labelled. When Ext.D1 property list indicates that the sample produced before the court had no label on it, it eludes comprehension how a label happened to be there on the sample bottle when it was forwarded for analysis as per Ext.P7 forwarding note. 18. In the above circumstances, there is no assurance that the very same sample which was drawn from the liquid allegedly seized from the possession of the accused was produced before the court and sent for chemical analysis. 19. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different_ Crl.R.P.No.3343/2005 7 _from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related"._ 20. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. Crl.R.P.No.3343/2005 8 21. There was also delay in producing the packets allegedly containing arrack and the sample bottle before the court. The recitals in Ext.P2 seizure mahazar and the evidence of PW1 would not show that the plastic bag, which contained the packets of arrack after taking sample, was sealed. The description of the properties given in Ext.P4 and Ext.P5 reports and also Ext.D1 property list will also not show that the plastic bag which contained the packets of arrack had been sealed. 22. Ext.D1 property list bears the initials of the Magistrate with the date 24.01.1999, the date of the occurrence. Ext.P6 remand report shows that the accused was produced before the learned Magistrate at his residence at 21.15 hours on 24.01.1999. Ext.D1 indicates that the property list was produced before the Magistrate at that time. Ext.D1 property list bears an endorsement by the learned Magistrate for returning the property list with a direction to produce the property also along with the list. This endorsement is dated 28.01.1999. It indicates that, along with the property list, the sample and the other properties had not been produced before the learned Magistrate on Crl.R.P.No.3343/2005 9 24.01.1999. The property list was re-submitted before the court only on 30.01.1999 with the properties. 23. The property clerk of the Magistrate's Court was examined as DW1 by the accused. He has deposed that the properties were produced before the court only on 30.01.1999. DW1 was not cross-examined by the prosecution. Therefore, his evidence binds on the prosecution and it is established that the properties were actually produced before the court only on 30.01.1999. 24. The delay in producing the properties, especially the sample, before the court is not explained by PW4 satisfactorily. His evidence that he had produced the properties before the learned Magistrate on 24.01.1999, at the time of producing the accused, cannot be believed in view of the entries in Ext.D1 property list and the unchallenged evidence of DW1. 25. 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 Crl.R.P.No.3343/2005 10 Bench held that it is not necessary to produce the article seized under Section 34 of the Abkari 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. 26. In the instant case, there has been undue delay in producing the packets containing the liquid and the sample in the court and the prosecution has offered no satisfactory explanation for the delay. Therefore, chances of tampering with the sample cannot be ruled out. 27. The abovementioned vital aspects have not been taken into consideration by the trial court as well as the appellate court while appreciating the prosecution evidence. In such circumstances, the petitioner/accused is entitled to be acquitted. Crl.R.P.No.3343/2005 11 28. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is 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. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr **TRUE COPY** **PS TO JUDGE**