O.K. Omana v. State of Kerala and The Sub Inspector of Police, Hosdurg Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 CRL.REV.PET NO. 467 OF 2007** **AGAINST THE ORDER/JUDGMENT CRA 289/2005 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD SC 781/2000 OF SUB COURT, KASARGOD, DIVISION AT HOSDRUG** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** O.K.OMANA, AGED 36 YEARS, W/O. GANGADHARAN, RESIDING AT, VEETTIYAL VEEDU, AMBALATHARA, PULLUR VILLAGE,, HOSUDRG TALUK, KASARGOD DISTRICT. BY ADV SRI.T.MADHU ## **RESPONDENT/RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE HOSDURG POLICE STATION,, HOSDURG TALUK, KASARAGOD DISTRICT. ## **OTHER PRESENT:** PP – SRI. M.C.ASHI **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.467 of 2007 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.467 of 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of October, 2023 ## **ORDER** The revision petitioner herein is the accused in S.C. No.781 of 2000 on the file of the Asst. Sessions Court, Hosdrug, alleging commission of offences punishable under Sections 55(a), (b) & (g) of the Kerala Abkari Act. 2. The prosecution allegation in short is that, on 29.11.1999 at 7 p.m. CW1-the detecting officer found the revision petitioner indulging in illicit distillation of arrack and recovered the apparatus used for illicit distillation and 1 litre arrack and 20 litres of wash fit for illicit distillation and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 6 and Exts. P1 to P12 were marked and MO1 to MO3 were identified. The trial Court found the accused guilty and convicted her to undergo simple imprisonment for a period of one year each, in each offence :3: CRL. R.P. No.467 of 2007 punishable under Sections 55(a), (b) and (g) and to pay a fine of Rs.1,00,000/- each in each count and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. The trial Court further ordered that the substantive term of imprisonment shall run concurrently and also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.289 of 2005 before the Sessions Court, Kasargod, which also ended up in dismissal whereby the conviction was confirmed but modified the sentence passed by the trial court by reducing the substantive term of imprisonment to two months each with a fine of Rs.1 Lakh each with default clause of imprisonment for 3 months. 5. The learned counsel for the revision petitioner would contend that there is a delay of almost 22 days in producing the seized properties before the court. Ext.P10 is the property list produced and the endorsement by the court therein would reveal that the same was produced before the court only on 21.12.1999, and the said delay of 22 days is not explained. It is further contended that PW6 also admits CRL. R.P. No.467 of 2007 :4: that Ext.P10 property list was produced before the court only on 21.12.1999. A perusal of Ext.P10 property list also would reveal that the specimen seal affixed on the sample has not been produced along with the same. The learned counsel for the revision petitioner further submits that the prosecution does not have a definite stand regarding the seizure, alleged contraband etc. To substantiate the same, the revision petitioner would rely on Ext.P9 FIR, wherein there is an endorsement that 'after taking the samples, the wash etc., was destroyed on the spot', whereas Ext.P12 report of the Sub-Inspector of Police states that the contraband which was given for safe custody to the Excise Authorities as per the orders of the court got destroyed by efflux of time. PW6 also have the same case as stated in Ext.P12 report and it is the contention of the counsel for the revision petitioner that the prosecution does not have a consistent case regarding the possession and safe custody of the seized article. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the CRL. R.P. No.467 of 2007 :5: statutory formalities mandated as per the Abkari Act. This court in _**Baburaj v. State of Kerala[2021 (6) KLT 416]**_ , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in _**Sathi v. State of Kerala [2007 (1) KLT SN 57].**_ In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The first contention raised by the learned counsel for the revision petitioner is that there is a delay of almost 22 days in producing the seized properties before the court. Ext.P10 is the property list produced and the endorsement by the court therein would reveal that the same was produced before the court only on 21.12.1999, and the said delay of 22 days is not explained. It is further contended that PW6 also admits that Ext.P10 property list was CRL. R.P. No.467 of 2007 :6: produced before the court only on 21.12.1999. This court in _**Ramachandran v. State of Kerala [2021 (1) KLT 793]**_ has held that unexplained delay is fatal to the prosecution case since it cannot be said that the sample produced before the court and analysed in the laboratory was a sample drawn from the contraband seized from the petitioner when there is no evidence with regard to the safe custody of the sample till its production before the court. In _**Chandran @ Chandrashekaharan v. State [2016 (5) KHC 650]**_ this court has held in paragraph 11 as follows: _“11. It is also to be noted that even though the contraband article was seized on 7.1.2006, the sample was produced before the court only on 9.1.2006, even though the revision petitioner and the contemporary records were produced before the court on 8.1.2006. No explanation had been given by the prosecution as to why the sample could not be produced before the court along with the accused. There is also no evidence regarding the safe custody of the sample till the same was produced before the court. PW1 was the person who sent the sample to the court. PW1 did not state that the sample was in his safe custody till the same was received by the court. The delay as such is not always fatal. However, unexplained delay in producing the sample is fatal to the prosecution case, even if the delay is only for one day,_ CRL. R.P. No.467 of 2007 :7: _particularly when there is no evidence regarding the safe custody of the sample till the production of the same before the court. Since there was unexplained delay in this case in producing the sample before the court, the same is also fatal to the prosecution, particularly when there was no evidence regarding the safe custody of the sample till its production before the court.”_ Therefore, I am of the view that such an unexplained delay of almost 22 days is fatal to the case of the prosecution. Likewise, a perusal of Ext.P10 property list also would reveal that the specimen seal affixed on the sample has not been produced along with the same which will also give the benefit of doubt in favour of the accused. 8. Yet another contention raised by learned counsel for the revision petitioner is that the prosecution does not have a consistent case regarding the possession and safe custody of the seized article. The discrepancies pointed out by the learned counsel for the revision petitioner as stated above have not been explained or clarified by the prosecution by adducing evidence. In view of the same, I am of the opinion that the same is fatal to the case of the prosecution. 9. The above vital aspects were not considered by the courts :8: CRL. R.P. No.467 of 2007 below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against her. The bail bond shall stand cancelled and she is set at liberty forthwith. Sd/- **VIJU ABRAHAM JUDGE** sm/