Mohanan v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 11 [ TH ] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 CRL.REV.PET NO. 1741 OF 2013 ``` ``` AGAINST THE JUDGMENT DATED 17.07.2013 IN CRL.APPEAL NO.406/2011 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM ``` ``` SC 1026/2009 OF ASSISTANT SESSIONS COURT, KOLLAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ## **`MOHANAN,`** ``` S/O.PARAMU, REMA BHAVANAM, KUNNATHOOR PADINJATTUM MURI, KUNNATHOOR VILLAGE. ``` ``` BY ADV. SRI.M.T.SURESHKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ``` ``` SHRI SANAL P.RAJ, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.1741 of 2013 2 ## **O R D E R** This revision is at the instance of the accused in S.C.No.1026 of 2009 on the file of Additional Assistant Sessions Judge, Kollam, assailing the judgment in Crl.Appeal No.406 of 2011 on the file of Additional Sessions Judge (Adhoc)-II, Kollam, which upheld his conviction and sentence under Section 55(i) of the Abkari Act. 2. Prosecution case is that on 05.08.2007, at 05.30 p.m., the revision petitioner was found in possession and engaged in sale of four litres of Indian Made Foreign Liquor, at Nediyavila, 7th Mile Junction. PW1-the Excise Inspector attached to Kunnathoor Excise Circle Office and party detected the offence. The revision petitioner was arrested at the spot. The contraband was seized and after completing the legal formalities of sampling, labelling, etc., the revision petitioner along with the contraband, were produced before the Excise Range Office. PW5 registered the crime and PW6 investigated the case and laid charge-sheet against the Crl.R.P No.1741 of 2013 3 revision petitioner under Sections 55(a) and 55(i) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 55(a) and 55(i) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P11 and identified MO1 photograph to prove its case. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied the incriminating circumstances brought on record and Ext.D1 was marked from defence side. 4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections 55(a) and 55(i) of the Abkari Act, and sentenced him to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/- under Section 55(a) with a default sentence of simple imprisonment for three months, and simple imprisonment for one year and fine of Rs.1,00,000/- under Section 55(i) Crl.R.P No.1741 of 2013 4 with a default sentence of simple imprisonment for three months. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No.406 of 2011. On re-appreciation of the facts and evidence, the appellate court found that, offence under Section 55(a) of the Abkari Act was not made out against the revision petitioner, and so his conviction and sentence under that Section was set aside. But his conviction and sentence under Section 55(i) of the Abkari Act was upheld, against which he has preferred this revision. 6. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgment by which, his conviction and sentence under Section 55(i) of the Abkari Act was upheld. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. Learned counsel for the revision petitioner would argue that the revision petitioner was running a provision Crl.R.P No.1741 of 2013 5 store, and he was rearing milch cows for his livelihood. He was never engaged in sale of liquor. According to him, PW2-Excise Officer purchased a cow from him, and some dispute arose between them regarding the quantity of milk obtained from the cow. Due to that enmity, a false case was foisted against him. 9. According to the revision petitioner, the courts below failed to note the material defects in prosecution case, which were sufficient to vitiate the trial. Learned counsel for the revision petitioner would point out that though Ext.P1 seizure mahazar contains the specimen impression of the seal, the nature of the seal affixed will not find a place in the seizure mahazar. When examined before court also, PW1 did not say anything regarding the nature of the seal affixed in the seizure mahazar. 10. In **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** , this Court held that, the nature of the seal used shall be mentioned in the seizure mahazar and the detecting officer, who has drawn the Crl.R.P No.1741 of 2013 6 sample, has to give evidence as to the nature of the seal affixed on the sample bottle. So the tamper proof despatch of the sample becomes doubtful, and the revision petitioner is entitled to get the benefit of that doubt. 11. Regarding the sale of Indian Made Foreign Liquor by the revision petitioner, both PWs 1 and 2 deposed in chief-examination that they saw the revision petitioner pouring foreign liquor to a glass from the bottle, but they have no case that, they saw anybody purchasing liquor from the revision petitioner. During cross-examination both of them stated that they did not see the revision petitioner pouring liquor to the glass. Though Rs.520/- was said to be recovered from his pocket, the person, who allegedly purchased liquor from the revision petitioner, and paid the cash was not made a witness by the prosecution. 12. Another ground taken up by learned counsel for the revision petitioner is that Ext.P11 inventory was prepared not in accordance with the mandate under Section 53A of the Abkari Act. Ext.P11 shows that it was prepared Crl.R.P No.1741 of 2013 7 by the Excise Inspector, Sasthamcotta, though it was countersigned by the Deputy Excise Commissioner, Kollam. MO1 photograph shows the bottles, glass and the sample alleged to have been seized from the possession of the revision petitioner. As per Section 53A of the Abkari Act, the inventory, the photograph of the articles along with the sample, if any, drawn certified by the Magistrate, shall be primary evidence in respect of such offence. But in the case on hand,it seems, the inventory was prepared by the Excise Inspector, who was not an authorised officer. The Deputy Excise Commissioner, who countersigned the inventory has not put the date, to show, on which date he countersigned the same. Learned Magistrate also has not affixed the date on the certificate issued. 13. Learned counsel for the revision petitioner contended that the certification of the correctness of the inventory should be made by an Executive Magistrate and not by the Judicial Magistrate, relying on the decisions **Santhosh T.A. and Another v. State of Kerala [2017** Crl.R.P No.1741 of 2013 8 **(5) KHC 107]** and **Sathyan v. State of Kerala [2023 (3) KHC 97]** . Since the Act contemplated under Section 53A of the Abkari Act is not a judicial one, but executive, the certification as to the correctness of the inventory prepared must have been done by an Executive Magistrate as per Section 3(4) of the Code of Criminal Procedure, so he would argue that the inventory was not in accordance with Section 53A of the Abkari Act, and so it cannot be accepted as a substitute for production of the contraband liquor before court, for the purpose of identification. Going by the decisions cited supra, this Court is liable to accept his argument that the inventory was not prepared, as per the mandate under Section 53A of the Abkari Act. 14. Ext.P10 Chemical Report shows that the sample bottle sent from the court on 23.08.2007 reached the Laboratory on 24.08.2007. The delay of one day in reaching the sample before the Laboratory is not at all explained by prosecution. Moreover, learned counsel for the revision petitioner pointed out that the Chemical Report in this case Crl.R.P No.1741 of 2013 9 was issued as early as on 02.02.2008. But the investigating officer questioned the witnesses after one year of receiving the Chemical Report. No explanation is offered for the delay in questioning the witnesses and completing the investigation. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. (See **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** and **Surendran and Another v. State of Kerala [2013 (3) KHC 780]** ). 15. In the case on hand, the occurrence was on 05.08.2007, but the final report was filed on 02.04.2009, that too, after one year of receipt of the Chemical Analysis Report. Prosecution failed to explain the delay in conducting the investigation and laying the final report. 16. Though the revision petitioner was found guilty under Section 55(i) of the Abkari Act for selling Indian Made Foreign Liquor, PWs 1 and 2, the official witnesses admitted before court that, they did not see the actual sale. PW4 Crl.R.P No.1741 of 2013 10 deposed that the revision petitioner is running a provision store. According to the revision petitioner, in connection with the sale of a cow, there was some dispute between him and PW2, and due to that enmity a false case was foisted against him. The defects pointed out in the forgoing paragraphs coupled with the case of enmity pleaded are sufficient to doubt the genuineness of the prosecution case. So the conviction and sentence imposed on the revision petitioner under Section 55(i) of the Abkari Act, by the courts below are liable to be set aside. 17. In the result, the impugned judgment of conviction and sentence are hereby set aside. The revision petitioner is found not guilty of the offence punishable under Section 55(i) of the Abkari Act and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-