Parukutty v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 432 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 495/2003 OF ASSISTANT SESSIONS ``` ## **`COURT, THRISSUR`** ``` AGAINST THE ORDER/JUDGMENT IN CRA 794/2006 OF ADDITIONAL DISTRICT ``` ## **`COURT (ADHOC), THRISSUR`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` PARUKUTTY W/O.KANDAN, KALETHEPARAMBIL DESOM, THIRUVILLWAMALA VILLAGE, TALAPPILLY TALUK, THRISSUR DT. ``` ``` BY ADVS. SMT.R.PADMAKUMARI SMT.SINDHU MANOJ ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ## **`SR PP- SRI.RENJIT GEORGE`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the 1[st] accused in S.C. No.495 of 2003 on the file of Principal Assistant Sessions Judge, Thrissur, assailing the judgment in Crl.Appeal No.794 of 2006, on the file of Additional Sessions Judge (Adhoc) Fast Track Court-I, Thrissur, which upheld her conviction and sentence under Sections 55(b) and 55(g) of the Abkari Act. 2. The prosecution case is that, on 06.09.1997 at 11.00 a.m., the revision petitioner (A1) and the 2[nd] accused, who is her husband were found possessing wash and other utensils for the purpose of manufacturing arrack. PWs.4 and 5 on getting reliable information, conducted search in the house of the accused, where they found brewing of illicit liquor. The 1[st] accused/ revision petitioner was arrested at the spot, and the contraband was seized. 3. On completing the legal formalities, the revision petitioner along with the contraband seized were ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** produced before the Excise Inspector, where crime was registered against the revision petitioner and her husband under Sections 55(b) and 55(g) of the Abkari Act. PW6 investigated the case and laid charge sheet against them. 4. On appearance of the accused persons before the trial court, charge was framed under Sections 55(b) and 55(g) of the Abkari Act, read over and explained, to which, they pleaded not guilty and claimed to be tried. PWs.1 to 9 were examined, Exts.P1 to P19 were marked and MOs.1 to 7 were identified from the side of prosecution, to prove its case. 5. On closure of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought on record, and Exts.D1 and D2 were marked from the defence side. 6. On hearing the rival contentions from either side and on analysing the facts and evidence, the trial ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** court found the 2[nd] accused not guilty of the offences alleged, and he was acquitted. The 1[st] accused was found guilty under Sections 55(b) and 55(g) of the Abkari Act, and she was convicted thereunder. A common sentence was seen given for both the offences, to undergo rigorous imprisonment for a period of one year and fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for a further period of six months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the 1[st] accused preferred Crl. Appeal No.794 of 2006. The appellate court, on reappreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which she has preferred this revision. 8. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner by the courts below. ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** 9. When the revision petition was taken up for consideration on 31.10.2023, learned counsel for the revision petitioner reported that, the revision petitioner is no more, and sought time to implead her legal representatives. But, later, learned counsel for the revision petitioner submitted that, though she contacted the legal representatives of the deceased revision petitioner, they were not interested to get themselves impleaded to prosecute the matter. Since the revision petitioner is no more, the substantive sentence of rigorous imprisonment for one year will get abated. But, the fine amount of Rs.1 lakh will not get abated, and if the revision petitioner has left any assets of her own, it will be proceeded against for realizing the fine amount. So, learned counsel for the revision petitioner sought permission to argue the matter on merit, and permission was granted. 10. Heard learned counsel for the revision petitioner and learned Public Prosecutor. ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** 11. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out some material defects and irregularities, which, according to her, are sufficient to vitiate the trial. The prosecution case is that, on getting reliable information that manufacturing of illicit liquor was going on in the house of the revision petitioner, the excise party led by PW4 proceeded to that house, after sending search memo to court. But, that search memo was not produced or marked by the prosecution, to show that, the search, conducted by PWs.4 and 5 in the house of the revision petitioner was legal. In the absence of search memo, that argument is liable to be accepted. 12. The next ground taken up by the learned counsel for the revision petitioner is that, Ext.P1 seizure mahazar, does not contain specimen impression of the seal, casting serious doubt regarding the identity of the sample, which reached the chemical examiner’s lab for analysis. In the absence of specimen impression of the ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. The prosecution was duty bound to establish beyond any shadow of doubt that the sample which was taken from the contraband, allegedly seized from the possession of the revision petitioner, was the sample which reached the chemical examiner’s laboratory for analysis. Since there is no specimen impression of the seal in the seizure mahazar, we cannot say that, the seal found on the sample bottle was affixed at the time of taking the sample, immediately after the seizure. Since a genuine doubt arises as to the seal affixed on the sample bottle, the revision petitioner is entitled to get the benefit of that doubt. PWs.4 and 5, the excise officials in the detection team, did not give any evidence as to the nature of the seal used in the sample bottle. The nature of the seal used, will not find a place in the seizure mahazar also. 13. Learned counsel for the revision petitioner pointed out that, according to prosecution, the total ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** quantity of arrack seized at the place of occurrence was only 500 ml, out of which 180 ml was taken as sample. So, the balance could have been only 320 ml of arrack, after taking the sample. But, MO4 produced before the trial court was 500 ml of illicit arrack in a 750 ml bottle. That discrepancy in the quantity of arrack, also is casting a doubt regarding the genuineness of the prosecution case. 14. Another point urged is that, there is no forwarding note among the prosecution records. The forwarding note also is an important document prepared at the scene of occurrence itself, which shall also contain the specimen impression of the seal. The forwarding note along with the sample bottles will be forwarded to the court, and from there to the chemical examiner’s lab. The identity of the sample will be checked in the laboratory, with the sample seal provided in the forwarding note. Since the forwarding note as such is missing, we are not sure whether it contained any specimen impression of ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [37 x 9] intentionally omitted <==** the seal or not. 15. In **Bhaskaran v. State of Kerala** [2020 KHC 5296 ] this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court, to satisfy the genuineness of the sample produced before the court. As we have seen, the detecting officer did not give any evidence as to the nature of the seal used in the seizure mahazar and in the forwarding note, and so, it cannot be found that there was tamper proof despatch of the sample. In the absence of forwarding note, it has to be held that prosecution failed to establish the link evidence. [See **Balachandran v. State of Kerala** 2020 (4) KLT 137]. 16. It is the case of the prosecution that, the house in which the offence was detected belonged to the 2[nd] accused. But he was acquitted by the trial court, and there was no appeal against his acquittal. The revision petitioner was a 55 years old lady at the time of ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [44 x 9] intentionally omitted <==** detection. Ext.P1 seizure mahazar, says that, when the excise officials reached the house, the revision petitioner was burning firewood for the purpose of distilling arrack. PWs.1 and 2, the independent witnesses, turned hostile to the prosecution, and they did not support the prosecution case that, the revision petitioner was found distilling arrack at her house. There is nothing to show that, she was the person, who was distilling illicit arrack, except the fact that, she was found in that house. 17. The reasons aforementioned including the absence of specimen impression of the seal in the seizure mahazar, absence of forwarding note, disparity in the quantity of arrack seized etc. etc. are grounds to doubt the veracity of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. The conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court, without noticing these material facts, are liable to be interfered with. ``` CRL.REV.PET NO. 432 OF 2008 ``` **==> picture [44 x 9] intentionally omitted <==** 18. In the result, the impugned judgments are hereby set aside. The revision petitioner is found not guilty of the offences alleged under Sections 55(b) and 55(g) of the Abkari Act, and she is acquitted under Section 235(1) of Cr.P.C. Her bail bond is cancelled and she is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** **SOPHY THOMAS JUDGE** LU