Michael, S/O. Mathai v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.P. Jyothindranath
Judgment Date: 2017-03-13
Court Decision / Holding: The criminal revision petition is allowed. The conviction and sentence are set aside; the petitioner is acquitted under Sections 55(a) and (g) of the Abkari Act; the fine imposed by the trial court is set aside.
Final Disposition: Revision petition allowed; accused acquitted; fine set aside.

Parties to the Case

Appellants / Petitioners

Michael, S/O. Mathai, PATTETTU HOUSE KAKKOMPU KARA, MUTTAM VILLAGE, THODUPUZHA TALUK

Respondents

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.K.Chandran Pillai

Counsels for Respondents

• Public Prosecutor SMT.K.K.SHEEBA

Case Synopsis & Summary

This is a criminal revision petition arising from a conviction under the Abkari Act for possession of contraband liquor. Michael, S/o Mathai, the revision petitioner, was convicted in CC 128/1996 and the conviction was affirmed by the Additional Sessions Judge in Crl.A. No. 190/1998, Thodupuzha. The core issues concern the chain of custody and the evidentiary linkage between the contraband seized and the chemical analysis report. The sequence shows that crime No. 68/95 was registered after the case was transferred to the Idukki Excise Range; the properties list and seizure included a 375 ml bottle containing 100 ml of arrack, an aluminium pot, and other utensils. The defense contends that no forwarding note for sampling was produced, no property clerk was examined, and there is no clear evidence of how and when the sample was lifted and sent for analysis; the article and the sample’s identity do not seem properly linked. The delay from detection (27.10.1995) to court receipt (30.01.1996) was not adequately explained. The prosecution argues that Section 114 of the Indian Evidence Act permits presumptions and that the police forwarded the case to the Excise Department appropriately. The court, after reviewing the evidence, notes lack of direct proof linking the seized article to the analysis report and acquits the petitioner under Sections 55(a) and (g) of the Abkari Act, setting aside the trial court’s fine.

Provisions of Law Cited

Section 114 of the Indian Evidence ActSections 55(a) and 55(g) of the Abkari Act

Legal Doctrines & Maxims

Presumption under Section 114 of the Indian Evidence Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that there is no proper linkage between the thondi article seized and the chemical analysis report; there is no forwarding note, no property clerk examined, and no material showing how and when the sample was lifted for analysis. The delay in producing the articles to court and the fact that the Circle Inspector was not an abkari officer are highlighted. The defense relies on Ravi v. State of Kerala (2011 (3) KLT 353) as supportive authority to challenge the chain of custody and the sufficiency of evidence connecting the seized contraband to analysis.

Contentions of Respondents

The prosecution maintains that detection occurred in 1995 and the article was forwarded to the Excise Department; delay is argued as a consequence of processing; Section 114 of the Evidence Act allows presumptions from the surrounding circumstances; the article was subjected to chemical analysis and the court can rely on the linkages created by the evidence and the chain of custody.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ravi v. State of Kerala	2011 (3) KLT 353	Mentioned Only	Cited by counsel to support an argument on evidentiary linkages; the court refers to it but does not treat it as binding precedent in this context.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 13TH DAY OF MARCH 2017/22ND PHALGUNA, 1938** **Crl.Rev.Pet.No. 1780 of 2002 ( )** **---------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 150/1998 of ADDITIONAL SESSIONS JUDGE, THODUPUZHA DATED 6.4.2002** **AGAINST THE ORDER/JUDGMENT IN CC 128/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI** **REVISION PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------** **MICHAEL, S/O. MATHAI, PATTETTU HOUSE KAKKOMPU KARA, MUTTAM VILLAGE, THODUPUZHA TALUK** **BY ADV. SRI.K.K.CHANDRAN PILLAI** **RESPONDENT(S)/RESPONDENT/COMPLAINANT: -------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** SHG/ ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1780 of 2002** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of March, 2017** ## **O R D E R** This criminal revision petition is filed against the judgment of conviction and sentence dated 25.8.1998 made in CC 128/1996 which was confirmed by the judgment dated 6.4.2002 made in Crl.A.No.190/1998 on the file of the Additional Sessions Judge, Thodupuzha. 2. When the revision petition came up for hearing, the learned counsel appearing for the revision petitioner submitted before me that the revision petitioner is no more. As such a report is called for from the learned Public Prosecutor in this regard. Today the learned Prosecutor reported that the revision petitioner is no more and death recorded. At this juncture, the counsel appearing for the revision petitioner submitted before me that the revision can be disposed of on merit. It is the submission that even without bringing the legal representative on record the Crl.R.P.No.1780 of 2002 2 matter can be disposed of. Adv. Smt.Namitha is appointed as amicus curiae to assist the court. The learned counsel submitted before me that in this case there is no lifting of sample by the Excise department. In this case, the crime was detected by the Circle Inspector of Police. Thereafter it can be seen that after registration of the crime as crime No.195/1995, the seized article was transferred to the Excise department for re-registration of the crime. As such it was re-registered as crime No.68/1995 before the Idukki Excise Range. Thereon an occurrence report was forwarded to the court. The said occurrence report is dated 27.10.1995. Therein it can be seen that the property was forwarded to the court by including in a property list and the said property is seen received by the court on 30.1.1996. Thereafter, it can be seen that basing upon a chemical analysis report, the court found the revision petitioner herein as guilty. The submission of the learned counsel is that there is nothing to link between the alleged thondi article and the chemical analysis report i.e. neither 3 Crl.R.P.No.1780 of 2002 the request for taking sample nor analysis report is seen produced. No forwarding note was produced and further no property clerk was examined to link the thondi article forwarded to the court and the sample sent for chemical analysis. The Advocate brought to my notice the decision of this court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . 3. I have heard the learned Public Prosecutor who submitted before me that in this case the detection was in the year 1995. Under such circumstances, after the detection of the crime by the police, it was forwarded to the Excise Department to proceed with the case. Under such circumstances, there is a delay occurred in respect of forwarding the thondi article to the court. It is also the submission that when sample was lifted and got analysed by virtue of Section 114 of the Evidence Act a presumption can be drawn. 4. In this case, I have perused the evidence. As per the evidence, it can be seen that PW1 is an attester to the search list. He marked Ext.P1 which is the search list. PW2 Crl.R.P.No.1780 of 2002 4 is the Circle Inspector who detected the case. According to him, he got a reliable information and Ext.P2 search memo was prepared. As per his evidence, it can be seen that he witnessed accused distilling arrack. The articles used for distilling the arrack was seized. It can be further seen that, in a bottle having a capacity of 375 ml., there was 100 ml. of arrack and that also seized. One aluminium pot, a jar etc. are also seized and it was entered in the search list. PW3 is a Police Constable who accompanied PW2. He also supported the prosecution case. PW4 is an attestor to the search list, who admitted his signature. PW5 is the Excise Inspector who received the accused and the thondi articles brought by the police. His case is that on the basis of the same, crime No.68/95 was registered and the occurrence report is marked as Ext.P4. Thereafter the accused was released on bail. In this case the main challenge is regarding the delay in production of articles before the court. Even though the detection is on 27.10.1995 the said articles reached at the court only on 30.1.1996. There is a Crl.R.P.No.1780 of 2002 5 long delay. The delay is not properly explained. The next aspect is that I have very carefully examined the analysis report,. It says that the analyst received one sealed bottle containing 300 ml. of a brown liquor alleged to be wash involved in crime no.68/95 of the Idukki Excise Range for chemical analysis. Thus, it can be seen that it is not the liquid which was seen seized from the spot and described in the search list as 100 ml of arrack in a 375 ml. capacity bottle. This will be different one. It appears to be that a sample was lifted. But there is no evidence before the court that how and when the sample was lifted. The property clerk was not examined. There is no case for the prosecution that a sample was taken from the contraband seized and separately sealed and forwarded to the court and it was sent for analysis. Under such circumstances, when there is no material to show that the article seized was liquor or wash it may not be possible to come to a conclusion that the revision petitioner possessed the article. The next point to be considered is that regarding the 6 Crl.R.P.No.1780 of 2002 utensils allegedly seized by PW2 from the spot. His oral evidence is that he had seized one jar and equipments for distilling and 375 ml bottle which contains 100 ml. of arrack and a pot made of aluminium and a mud pot and also 15 litres of wash in a jar. Without separately identifying these materials, these are marked before the court as MO1 series. When there is inordinate delay in producing the liquor/wash and when there is no material before the court how sample was taken and when the other contraband article allegedly used for distilling also reached only along with the liquor then it can be only held that prosecution failed to prove the case. Further, at that point of time Circle Inspector of Police was not an abkari officer. The notification is in the year 1996. It is pertinent to note that no separate sentence has been awarded under Section 55 (a) and (g) of the Abkari Act. There was no appeal or revision by the State regarding the said aspect. Under such circumstances, it can be only held that the revision petitioner is entitled for an acquittal under Sections 55 (a) and (g) of the Abkari Act. Hence the 7 Crl.R.P.No.1780 of 2002 criminal revision petition is allowed. The fine imposed by the trial court is hereby set aside. Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/