Mekkulampatta Sreedharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935** ## **Crl.Rev.Pet.No. 1627 of 2002 (A)** **--------------------------------AGAINST THE JUDGMENT IN CRA.179/1998 of SESSIONS COURT,MANJERI DATED 14-112002** **AGAINST THE JUDGMENT IN CC.128/1996 of JUDL.MAG.OF FIRST CLASS-I,MANJERI** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **MEKKULAMPATTA SREEDHARAN, S/O. AYYAPPAN, AREACODE AMSOM.** **BY ADV. SRI.P.SAMSUDIN** ## **COMPLAINANT(S)/RESPONDENT/COMPLAINANT & STATE:** **---------------------------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF EXCISE, MANJERI THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **B. KEMAL PASHA, J** **-----------------------------------------------** Crl.R.P. No. 1627 of 2002 **-----------------------------------------------** Dated this the 9[th] day of April, 2013 ## **O R D E R** Petitioner who is the accused in C.C.128 of 1996 of the Judicial First Class Magistrate's Court-I, Manjeri has challenged his conviction and sentence for the offence under Section 55(a) of the Abkari Act before the Sessions Court, Manjeri through Crl.Appeal No.179 of 1998. The learned Sessions Judge confirmed the conviction; but, modified the sentence as sentence of simple imprisonment for three months and to pay a fine of `1,000/-, in default, to undergo rigorous imprisonment for three months. 2. The prosecution case is that on 10.2.1996 PW1, Preventive Officer of Excise, Manjeri while on Crl.R.P.No. 1627 of 2002 -:2:- patrol duty along with PW2 Excise Guard, found the petitioner in possession of two litres of illicit arrack in a plastic can and consequently he was arrested and the seizure was effected through Ext.P1 mahazar. Ext.P2 occurrence report was prepared, and the seized contraband was produced before the Judicial First Class Magistrate's Court-I, Manjeri. On the basis of the forwarding note, the sample was forwarded for chemical analysis and Ext.P3 chemical analysis report was received. The chemical analysis proved that the sample contained 25.29% by volume of ethyl alcohol, and hence the complaint. 3. The learned counsel for the petitioner has argued that there is inordinate delay of two days in producing the contraband before the court below after seizure, and that there is nothing to show that a forwarding note was filed by the investigating officer to get the sample analyzed. It has been further argued Crl.R.P.No. 1627 of 2002 -:3:- that there is nothing to show that the sample which was subjected to chemical analysis through Ext.P3 is the very same sample taken from the contraband allegedly seized from the possession of the petitioner. It is also argued that no arrest memo has been prepared. 4. The learned counsel for the petitioner relies on the decision in **Ravi v. State of Kerala (2011 (3) KLT 353)** rendered by the Division Bench of this Court to substantiate his argument that a conviction cannot be entered against the accused in a prosecution of a case like the present one, unless it is proved that the sample which was analyzed at the chemical examiner's laboratory was the very same sample taken from the contraband allegedly seized from the possession of the accused. On a perusal of the records in this case, it can be seen that the seized contraband was produced before the Judicial First Class Magistrate's Court-I, Crl.R.P.No. 1627 of 2002 -:4:- Manjeri, on 12.2.1996 only, i.e., on the 2[nd] day of the seizure. The forwarding note for chemical examination is seen appended with the property list produced along with the contraband before court on 12.2.1996. Signature and seal of the learned Judicial First Class Magistrate-I, Manjeri can be seen in the forwarding note. So there is sufficient reason to believe that the contraband was produced before the Judicial First Class Magistrate's Court-I, Manjeri on 12.2.1996 along with a forwarding note. Of course, it is a fact that the forwarding note was not marked before the trial court. At the same time, the forwarding note is still present among the files. 5. According to PW1, on 10.2.1996 at 5 p.m. while he along with PW2 was on patrol duty they could see the petitioner in possession of two litres of illicit arrack. The contraband was seized and samples were taken. The seizure was effected through Ext.P1. Crl.R.P.No. 1627 of 2002 -:5:- According to PW1, he placed the petitioner under arrest at the scene of occurrence. He prepared Ext.P2 occurrence report. Even though the learned counsel for the petitioner is challenging the arrest of the petitioner from the spot, no question challenging the factum of arrest was put to PW1 in cross-examination. No question was asked regarding any delay caused in the production of the contraband before the Judicial First Class Magistrate's Court-I, Manjeri. In crossexamination, PW1 has conceded that the crime committed by the petitioner is that he was found in possession of illicit liquor. 6. PW2, Excise Guard has corroborated the evidence of PW1. It seems that no questions relating to the arrest or seizure were put to PW2 also in crossexamination. Even though PW3 and PW4 who were the independent witnesses cited by the prosecution to prove the seizure have turned hostile to the Crl.R.P.No. 1627 of 2002 -:6:- prosecution, PW3 has admitted his signature in Ext.P1. PW5 was the Excise Circle Inspector who preferred the complaint. He proved Ext.P3 chemical analysis report. No question was asked to PW5 also regarding any delay in the production of the contraband before court and also regarding the arrest or seizure. 7. Ext.P3 clearly shows that the sample was received from the Judicial First Class Magistrate's Court-I, Manjeri. The forwarding note appended with the property list also clearly reveal that the contraband and the samples were produced before court on 12.2.1996. In the case relating to the decision noted supra, there was a delay of 16 days in the production of the contraband before court, and it seems that the same was challenged by the accused. In the present case, the petitioner has no case that he was in any way prejudiced due to the delay of two days in the production of the contraband before court. Matters Crl.R.P.No. 1627 of 2002 -:7:- being so, the facts relating to the present case can be distinguished from the facts of the case relating to the decision reported in **Ravi(supra).** Even according to PW1, the crime committed by the petitioner was mere possession of illicit liquor. On an appreciation of the evidence and records in this case, it can be seen that the allegations proved against the petitioner clearly go to constitute an offence under Section 58 of the Abkari Act and not the one under Section 55(a) of the Abkari Act. 8. An offence under Section 58 of the Abkari Act as it then stood, was punishable with fine which shall not be less than `15,000/- and with imprisonment which may extend to one year. It is evident that there is no mandatory term of imprisonment; at the same time, the fine amount shall not be less than `15,000/-. Considering the facts and circumstances of this case and the observations made above, this court is satisfied Crl.R.P.No. 1627 of 2002 -:8:- that the offence proved against the petitioner is one under Section 58 of the Abkari Act and therefore, the conviction is liable to be modified to that effect. 9. Matters being so, the conviction passed by the court below under Section 55(a) of the Abkari Act is liable to be modified as one under Section 58 of the Abkari Act. Regarding the sentence, learned counsel for the petitioner has pointed out that the petitioner has recently undergone a bye-pass surgery and he is under strict medical observation. Considering the facts and circumstances of this case and the small quantity of the contraband, this Court is of the view that a sentence of imprisonment till the rising of the court and a fine of `15,000/-, in default to undergo simple imprisonment for three months, will meet the ends of justice in this case. In the result, this criminal revision is allowed in part by modifying the conviction as one under Section Crl.R.P.No. 1627 of 2002 -:9:- 58 of the Abkari Act and by modifying the sentence as follows. (1) The petitioner/accused is sentenced to undergo imprisonment till the rising of the court and to pay a fine of `15,000/-, in default, simple imprisonment for three more months. (2) The petitioner shall surrender before the trial court on 2.5.2013, to suffer the sentence imposed. ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge._ Crl.R.P.No. 1627 of 2002 -:10:- B. KEMAL PASHA, J -----------------------------------Crl.R.P.No.1627 of 2002 O R D E R ************ 9[th] day of April, 2013