Payyar Premarajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945** **CRL.REV.PET NO. 235 OF 2018 AGAINST THE JUDGMENT IN S.C.NO.181/2007 DATED 30.03.2009 OF THE ASSISTANT SESSIONS COURT, PAYYANNUR, WHICH WAS CONFIRMED IN CRL.APPEAL NO.262/2009 DATED 26.07.2017 OF THE ADDITIONAL SESSIONS COURT NO.II, THALASSERY** **REVISION PETITIONER/APPELLANT/ACCUSED:** **PAYYAR PREMARAJAN AGED 39 YEARS** **S/O.KORAN, PAYYAR HOUSE, VATHILMADA, PAYYAVOOR P.O., PAYYAVOOR AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670632.** **BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM,THROUGH S.H.O. PAYYAVOOR POLICE STATION, KANNUR DISTRICT.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 15.11.2023, THE COURT ON 29.11.2023 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.235 of 2018 ## **P.G. AJITHKUMAR, J.** **--------------------------------------------------Crl.R.P.No.235 of 2018 ---------------------------------------------------Dated this the 29[th] day of November, 2023** ## **O R D E R** The conviction and sentence of the revision petitioner for an offence under Section 8(2) of the Kerala Abkari Act, 1077 by the Assistant Sessions Court, Payyannur, which stands confirmed in Crl.Appeal No.262 of 2009, are challenged in this Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. The prosecution was initiated on the basis of the allegations that at about 9.30 a.m. on 22.08.2005 the petitioner was found near his house possessed with a jerrycan containing 4 litres of arrack. It was PW1, the Sub Inspector of Police, Payyannur, who detected the offence. On finding the petitioner possessed with contraband, PW1 arrested him and seized the contraband as per Ext.P3 mahazer. After necessary investigation, a final report was filed by PW6, based on which the case was committed. Accordingly S.C.No.181 of 2007 was 3 Crl.R.P.No.235 of 2018 instituted and a trial was held. At the trial, PWs.1 to 6 were examined and Exts.P1 to P11 were marked. Mos.1 and 2 were identified. The trial court, after considering the said evidence and also the explanation furnished by the petitioner during his examination under Section 313(i)(b) of the Code held that the charge of his possessing arrack was proved. 3. Before the appellate court, the accused assailed the conviction and sentence mainly on the ground of reliability of witnesses, who detected the crime and also those who witnessed it. It was also contended that the arrest memo and inspection memo, Exts.P1 and P2, carried the crime number, which not only improbabilises the prosecution case but also it would indicate that the case was falsely created after the arrest of the petitioner. The appellate court did not accept the said contentions. It was held that the evidence adduced by the prosecution did not contain any inconsistency. Similar contentions are raised in this revision petition also. The case that the liquid contained in MO1 can was arrack is disputed. Legality of preparation of sample at the time of arrest, and genuineness of sample produeced before the Magistrate is 4 Crl.R.P.No.235 of 2018 challenged. 4. All such contentions essentially are relating to the questions of fact and not about non-compliance of any statutory provision or a bar created by law. Only if the appreciation of evidence by the court below is so perverse, there can be any interference by this Court in exercise of the powers of revision. 5. It is the settled law that the High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. [See: **State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015) 3 SCC 123; Kishan Rao v. Shankargouda (2018) 8 SCC 165].** 6. The learned counsel for the petitioner would submit 5 Crl.R.P.No.235 of 2018 that in Ext.P3 seizure mahazar, sample impression of the seal affixed on the contraband and sample was not affixed and that creates doubt regarding the genuineness of the sample prepared at the place of occurrence. Therefore, the prosecution can only fail. 7. In this regard, the learned counsel places reliance a decision of this Court in **Shijo Das v. State of Kerala [2023 KLT OnLIne 732].** In that decision it was held that the sample sealed should be impressed on the seizure mahazar also and only then the court will be able to satisfy the genuineness of the sample produced in the court. In **Shijo Das** , the principle laid down by this Court in **Bhaskaran v. State of Kerala [2020(5)** **KLT OnLine 1057]** has been placed reliance on. In **Bhaskaran,** this Court held that the detecting officer, who drew sample should give evidence in court as to the nature of the seal affixed on the sample bottle and the specimen seal shall be affixed on the seizure mahazar besides in the forwarding note. The purpose for affixing specimen seal on the seizure mahazar has been explained. It was held that only if the specimen seal was affixed on the seizure mahazar also, it can be compared 6 Crl.R.P.No.235 of 2018 with the seal on the sample and ensure its genuineness. Therefore, the rationale in taking such a view is that the court, from the materials produced before it, could be able to ascertain genuineness of the sample at the time when it is produced before the court. 8. PW1 is the detecting officer in this case. He gave evidence to the effect that after seizure and sampling, he has prepared the seizure mahazar. He kept in his custody the sample as well as the remainder of the contraband. Both were affixed with slips carrying sample seal and signatures of himself and witnesses. Both of them PW1 as well as the witness PW2 deposed in court substantiating that fact. PW1 further deposed that the contraband and the sample were in his custody through out and he produced the same before the Magistrate on third day, ie., 24.08.2005, with only one day delay. The court below in unequivocal terms held that PW1 is a reliable witness and evidence of PW2 lends sufficient support to the version of PW1. The samples and the contraband, which were produced before the Magistrate along with Ext.P6 property list were received after verification and confirming the genuineness. In such a 7 Crl.R.P.No.235 of 2018 state of affairs, there is absolutely no reason to doubt the genuineness of the sample produced before the court. Therefore the law laid down in **Bhaskaran** (supra) and **Shijo Das** (supra) has no application to the facts of this case. 9. As stated above, the jurisdiction of this Court in the exercise of the powers of revision is to find whether there is any perversity in the findings rendered by the courts below. Only if the appreciation of evidence is so perverse, there can have an interference to the findings of the court below in a revision. Having gone through the entire evidence and materials, I find no reason to hold that the findings entered by the courts below are totally wrong or perverse. Therefore, the challenge of the petitioner to his conviction does not sustain. The trial court sentenced the appellant to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.One lakh. The prosecution has not alleged that the petitioner has involved in any other similar case. The contraband the petitioner had possessed is four litres of arrack. Considering all such aspects, I am of the view that the term of substantive sentence shall be reduced. Therefore, the petitioner is sentenced to 8 Crl.R.P.No.235 of 2018 undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.One lakh. In default of payment of fine, the petitioner shall undergo simple imprisonment for a period of three months. He is entitled to get set off under Section 428 of the Code. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr