PENNUKUTTY, W/o VISWAMBARAN, CHENKANIMMAL HOUSE, KUNNATHARA AMSOM DESOM, KOYILANDY TALUK v. STATE OF KERALA through the EXCISE INSPECTOR, BALUSSERY EXCISE RANGE, KOZHIKODE DISTRICT

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMRS.JUSTICESOPHYTHOMAS THURSDAY,THE16[TH]DAYOFNOVEMBER2023/25THKARTHIKA,1945 CRL.REV.PETNO.2182OF2010 CRA849/2006OFSESSIONSCOURT,KOZHIKODE SC672/2004OFASSISTANTSESSIONSCOURT,QUILANDY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` PENNUKUTTY,W/O.VISWAMBARAN, CHENKANIMMALHOUSE,KUNNATHARAAMSOM DESOM,KOYILANDYTALUK. ``` ``` BYADVSRI.SUNNYMATHEW ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATEOFKERALATHROUGHTHEEXCISE INSPECTOR,BALUSSERYEXCISERANGE, KOZHIKODEDISTRICT,REPRESENTEDBY THEPUBLICPROSECUTOR,HIGHCOURTOF KERALA,ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITGEORGE,SENIORPUBLIC PROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARDON 16.11.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.R.P. 2182 of 2010 2 ## **O R D E R** This revision is at the instance of the accused in SC No.672 of 2004 on the file of Assistant Sessions Judge, Koyilandy, assailing the judgment in Crl.Appeal No.849 of 2006 on the file of Sessions Court, Kozhikode, which upheld her conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 23.08.2002 at about 12.15 p.m, while PW4, preventive officer attached to Balussery Excise Range, and party were on patrol duty, near Alinchuvadu bus stop, they found the revision petitioner walking through the road carrying a white can. She was intercepted and the contents of the can was examined and it was found to be 2 litres of illicit arrack. Since there were no woman officials in the excise team, she was not arrested. The contraband was seized, sample was taken, and after completing all legal formalities such as sampling, sealing etc, records and the articles seized were produced before the Excise Range Office, and from there, it was forwarded to the jurisdictional Magistrate court. PW6 investigated the case and laid charge sheet against the revision petitioner. 3. On appearance of the revision petitioner before the trial Crl.R.P. 2182 of 2010 3 court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which she pleaded not guilty and claimed to be tried. 4. PWs 1 to 6 were examined, Exts.P1 to P6 were marked and M.O 1 was identified by the prosecution, to prove its case. 5. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 Cr.P.C, and she denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 6. 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 8(1) and 8(2) of the Abkari Act and she was sentenced to undergo simple imprisonment for one year and fine of Rs.1 lakh with a default sentence of simple imprisonment for a further period of three months. 7. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.849 of 2006, and the appellate court dismissed the appeal upholding her conviction and sentence, against which she has preferred this revision petition. 8. Now this Court is called upon to verify the legality, Crl.R.P. 2182 of 2010 4 propriety and correctness of the judgments impugned. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. The PW4-the detecting officer, and PW1-Excise Guard who was in the patrolling team, deposed the case in tune with the prosecution. PWs 2 and 3, the independent witnesses, turned hostile to the prosecution. 11. Learned counsel for the revision petitioner would argue that, though PWs 1 and 4 supported the prosecution case, the trial itself was vitiated due to defects, which were sufficient to shake the prosecution case as such. 12. The first ground taken up by the revision petitioner is that, nothing was recovered from the revision petitioner, and since there was no arrest at the scene of occurrence, the prosecution utterly failed to prove the nexus between the revision petitioner and the contraband seized. If the prosecution has got a case that, the revision petitioner was found carrying a can containing 2 litres of arrack, they could have made arrangements to arrest her, at the spot itself. The reason stated in Ext.P1 seizure mahazar that, due to absence of woman excise officials in the patrolling team, she Crl.R.P. 2182 of 2010 5 was not arrested, is not a reasonable or satisfactory explanation, and it is sufficient to cause reasonable doubt regarding the seizure of the contraband from the revision petitioner, that too from a public place. The revision petitioner is entitled to get the benefit of that doubt. 13. Learned counsel for the revision petitioner pointed out that, though the alleged seizure was on 23.08.2002, Ext.P4 thondy list shows that the seized articles reached the court only on 26.08.2002 with a delay of three days. The prosecution has not offered any explanation for the delay of three days in reaching the contraband and its sample before the court. Moreover, Ext.P6 chemical analysis report shows that, the sample bottle was forwarded from Judicial First Class Magistrate Court, Koyilandy as per reference letter dated 24.08.2002, but the sample reached the chemical examiner’s lab on 04.09.2002, after a delay of about 12 days. The prosecution has not offered any explanation for the delay of 12 days in reaching the sample before the chemical examiner’s lab, after forwarding it from the court. The prosecution was bound to prove that the sample which was taken from the contraband at the place of occurrence was the sample which Crl.R.P. 2182 of 2010 6 reached the court, and later the chemical examiner’s lab. When there is inordinate delay in producing the sample before the court, and there is unexplained delay in reaching the sample sent from court to reach the chemical examiner’s lab, it casts serious doubt regarding the genuineness of the sample which was analysed by the lab. 14. In **Krishnadas v. State of Kerala [2019 KHC 191]** , this Court had occasion to consider the impact of delay in reaching the sample before the laboratory, and it was held that, when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. 15. In the case on hand, there was delay in conducting investigation and filing the final report. Though the occurrence was on 23.08.2002, the witnesses were seen questioned only on 28.01.2004. The final report was submitted before court on 31.01.2004. As per Section 50 of the Abkari Act, every investigation into the offence under the Act shall be completed without unnecessary delay. 16. In **Moothedath Sivadasan v. State of Kerala [2021** Crl.R.P. 2182 of 2010 7 **(1) KLT 744]** , this Court reiterated the necessity to complete the investigation in abkari cases without delay. 17. In Ext.P1 seizure mahazar, there is specimen impression of the sample seal. But, the nature of that seal is not mentioned in the mahazar and according to the revision petitioner, that was also necessary to prove the genuineness of the sample and the transparency of the procedure. Admittedly, in Ext.P1 seizure mahazar, the nature of the specimen impression of the seal is not made mention. 18. Though Ext.P6 chemical analysis report shows that the sample analysed contain 20.41% by volume of ethyl alcohol, the prosecution failed to establish the link evidence to show that, the sample which was recovered from the contraband allegedly seized from the revision petitioner, was the sample analysed by the chemical examiner. The reasons pointed out by the learned counsel for the revision petitioner are sufficient to doubt the genuineness of the prosecution case, and the revision petitioner is entitled to get the benefit of that doubt. So, the judgments of the trial court as well as the appellate court convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Crl.R.P. 2182 of 2010 8 Act, are liable to be set aside. In the result, the impugned judgments of conviction and sentence are set aside. The revision petitioner is found not guilty of the offences alleged 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 stands allowed accordingly. Sd/- **SOPHY THOMAS JUDGE** smp