Nachikkat Yesoda v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938 Crl.Rev.Pet.No. 910 of 2009 -------------------------------- AGAINST THE JUDGMENT IN CRA 60/2002 of ADDL.SESSIONS COURT (ADHOC)II, THALASSERY DATED 30-08-2008 AGAINST THE JUDGMENT IN CC 103/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT.,PAYYANNUR DATED 04-01-2002 REVISION PETITIONER/APPELLANT/ACCUSED:: ----------------------------------------- NACHIKKAT YESODA, W/O.VENUGOPALAN, PANAPPUZHA AMSOM, ERIYAM DESOM, KANNAMKAI. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/COMPLAINANT & STATE:: ----------------------------------- STATE OF KERALA, REP.PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. R.P. No. 910 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of May, 2016 ## **ORDER** The petitioner was convicted by the trial court for the offence under Section 55(a) of the Abkari Act. She was sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs.25,000/- and, in default of payment of fine, to undergo rigorous imprisonment for two months. The petitioner preferred an appeal challenging the conviction and sentence passed by the trial court. The appellate court confirmed the conviction and sentence passed by the trial court. Challenging the correctness, legality or propriety of the conviction and sentence, the petitioner has preferred this revision petition. CRRP 910/2009 2 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is that the petitioner was found in possession of 1.5 litres of illicit arrack in a 2.5 litre jerrycan at about 9.30 a.m. on 21.9.1996. She was arrested then and there and the contraband was seized by PW1, the Excise Inspector, Excise Range Office, Pappinissery. PW1 had drawn 180 ml. of arrack as sample in a bottle from the bulk seized from the petitioner. The petitioner was released on bail then and there by PW1. 4. The contraband including sample was produced before the court only on 23.9.1996. It was produced along with a List of Property. But, that List of Property was not tendered in evidence. The List of Property is available among the records. It can be seen from this document that the contraband was produced before the court only on 23.9.1996. PW1 admitted also that the property was CRRP 910/2009 3 produced before the court only on 23.9.1996. Initially, during the cross examination, PW1 categorically stated before the court that there was no reason for not producing the contraband before the court on 21.9.1996. Subsequently, he stated that 22.9.1996 was a Sunday. Intervening holiday is not a good reason for not reaching the contraband seized before the Magistrate concerned. Therefore, 22[nd] happened to be a Sunday cannot be advanced by the prosecution as a good reason for not producing the property before the Magistrate at the earliest. Producing the contraband items along with the List of Property is an urgent duty. Such a duty has to be performed without delay . A Division Bench of this Court in **Ravi v. State of Kerala(2011 (3) KLT 353)** has laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector(2013 (3) KHC 308)** found, for the reason stated therein, that an CRRP 910/2009 4 unexplained delay of a single day is fatal to the prosecution case. In the case on hand, there is practically no valid explanation for not reaching the contraband before the Magistrate without delay. Therefore, the delay that occurred in producing the property before the court affects the veracity of the prosecution case of occurrence. In such a circumstance, the petitioner, at least, is entitled to the benefit of doubt. 5. Ext.P3 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. It is reported in this document that ethyl alcohol was detected in the sample. It is also stated in Ext.P3 that the seal on the bottle was in tact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottle by PW1? The prosecution case is that PW1 had drawn 180 ml. of arrack in a bottle as sample from the bulk and that sample bottle was sealed. PW1 deposed CRRP 910/2009 5 also that the sample bottle was so sealed. A copy of the Forwarding Note was not marked in this case. A copy of the Forwarding Note is available among the records. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed in the copy of the Forwarding Note. Whether the sample seal was affixed in the original Forwarding Note sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, it has to be presumed that such sample seal was not affixed in the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, CRRP 910/2009 6 as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. Moreover, the clerk who was dealing with the properties in the court was not examined. If such a person was examined, some light would have been available as to whether the original Forwarding Note sent to the Chemical Examiner was affixed with a sample seal or not. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the petitioner had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner CRRP 910/2009 7 examined really the sample taken from the bulk allegedly seized from the petitioner in this case. 6. This Court in **Rajamma v. State of Kerala (2014** - **(1) KLT 506)** has held as follows : “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the CRRP 910/2009 8 absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” The Division Bench of this Court in **Ravi v. State of Kerala (supra)** has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, Ext.P3 Certificate of Chemical Analysis is rendered a doubtful one entitling the petitioner to the benefit of doubt. 7. As per Clause 34 of the Excise Manual, the officer CRRP 910/2009 9 concerned is bound to take a minimum of two samples of the contraband seized. This is a mandatory provision. Admittedly, in the case on hand, PW1 had taken only one sample of the contraband. Therefore, there is violation of the mandatory provision contained in Clause 34 of the Excise Manual. This view is fortified by the judgment rendered by a learned single Judge of this Court in Criminal Appeal No.47 of 2006. In that judgment, the learned Judge observed as follows: “ 11. The insistence for taking two samples has a purpose to serve. If the accused feels that the first sample sent for examination was not sufficient or that there is some defect, of course he can seek the court to sent the second sample for examination. That is a safeguard given to the accused which cannot be denied at all by taking only one sample. It is clear that P.W.1 had taken only one sample. It has been held by this Court that violation of such provision is fatal.” Therefore, in that case, the conviction and sentence passed CRRP 910/2009 10 by the trial court were set aside and the accused was acquitted of the charges levelled against him. This judgment was followed by this Court in Crl. R.P. Nos.2316 of 2011 and 2529 of 2009 and allowed these revision petitions by setting aside the convictions and sentences passed by the courts below and the revision petitioners were acquitted of the offences alleged against them. Therefore, following those judgment and orders, the petitioner in the case on hand is also entitled to be acquitted of the offence under Section 55 (a) of the Abkari Act. 8. For the foregoing reasons, the conviction and sentence passed against the petitioner are liable to be set aside. She is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act. 9. In the result, the conviction and sentence passed against the petitioner by the trial court and confirmed by the appellate court are set aside. She is acquitted of the offence under Section 55(a) of the Abkari Act. She is set at liberty. CRRP 910/2009 11 The bail bond executed by her shall stand cancelled. This Criminal Revision Petition is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S.(Hr.Gr.)To Judge