PRADEESH v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** **Crl.Rev.Pet.No.411 OF 2011** **AGAINST THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE COURT OF THE FIRST ADDITIONAL SESSIONS JUDGE, KOZHIKODE IN CRIMINAL APPEAL NO.646/2009 DATED 30.10.2010 CONFIRMING THE CONVICTION AND SENTENCE IMPOSED BY THE ASSISTANT SESSIONS JUDGE, KOYILANDY IN S.C.NO.648/2007 DATED 01.10.2009** ## **PETITIONER/APPELLANT/ACCUSED:** **PRADEESH, AGED 33, S/O.KRISHNAN. VADAKKEDATH MEETHAL, MODAKKALLUR AMSOM, DESOM, KOYILANDY TALUK.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. SANTHOSH PETER, SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.06.2020, THE COURT ON 17.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.411/2011 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.411 of 2011 ---------------------------------------------Dated this the 17[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.648/2007 on the file of the Court of the Assistant Sessions Judge, Koyilandy. 2. The prosecution case is that, on 16.10.2006, at about 14:30 hours, at the road in front of the house of one Balan at the place Kuruvaloor in Koyilandy Taluk, PW1 Preventive Officer found the petitioner having in his possession MO1 can containing three litres of arrack. 3. The trial court framed charge against the petitioner for the offence under Section 8(1) of the Abkari Act. The petitioner pleaded not guilty and claimed to be tried. Crl.R.P.No.411/2011 3 4. Thereupon, the prosecution examined PW1 to PW5 and marked Exts.P1 to P10 documents. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence under Section 8(1) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.646/2009 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the accused in this revision petition. Crl.R.P.No.411/2011 4 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW1 is the Preventive Officer who detected the offence. PW2 is the excise guard who was in the excise party led by PW1. They have given evidence regarding the occurrence in detail. 10. The evidence of PW1 and PW2 would show that the excise party found a can containing some liquid in the possession of the petitioner and they took sample of the liquid in a bottle and seized the can and the sample as per Ext.P2 mahazar. The fact that the independent witness, who was examined as PW5, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW1 and PW2 in that regard. 11. Ext.P10 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample contained 31.95% by volume of ethyl alcohol. Crl.R.P.No.411/2011 5 12. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is not sufficient to find that the very same sample drawn from the liquid allegedly seized from the possession of the accused was sent for chemical analysis. 13. There is a specific recital in Ext.P2 seizure mahazar that PW1 took sample of the liquid from the can in a bottle and that he sealed the sample bottle and the can and affixed label on them, bearing his signature and also the signature of the witnesses and the accused. PW1 and PW2 have also given evidence to that effect. 14. The evidence of PW1 is that he produced the articles and the accused and the records before PW4 Excise Inspector. PW4 had registered Ext.P4 crime and occurrence report. The description of the can and the sample bottle given in Ext.P4 report would show that there was label on the can and the sample bottle when they were produced by PW1 before PW4. Crl.R.P.No.411/2011 6 15. The evidence of PW4 is to the effect that he produced the sample before the court as per Ext. P5 property list. The description of the sample bottle given in Ext.P5 property list does not show that the sample bottle produced before the court had any label on it or that it was labelled. It indicates that the sample which was produced before the court was not the sample which was produced by PW1 before PW4. 16. Ext.P6 is the copy of the forwarding note prepared by PW4 for sending the sample for chemical analysis. The description of the sample bottle given in Ext.P6 forwarding note shows that the sample bottle was sealed and labelled. When the sample produced before the court as per Ext. P5 property list had no label on it, it eludes comprehension how label happened to be there on the sample which was forwarded for analysis. 17. In the above circumstances, there is no assurance that the very same sample which was drawn at the spot of the occurrence by PW1 from the liquid seized from the possession of the accused was produced before the court and sent for chemical analysis. Crl.R.P.No.411/2011 7 ## 18. In **Vijay Pandey v. State of Uttar Pradesh : AIR** **2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be corelated"._ 19. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the Crl.R.P.No.411/2011 8 accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 20. The evidence of PW4 is that he produced the can containing the residue before the Assistant Excise Commissioner for preparation of inventory and certification by Magistrate. Ext.P8 is the inventory prepared by the Assistant Excise Commissioner. The application submitted by the Assistant Excise Commissioner before the Magistrate for certification of inventory is dated 03.11.2006. The prosecution has not explained the delay in producing the can before the Magistrate for certifying the inventory. Ext.P9 is the certificate issued by the Magistrate under Section 53A(2) of the Abkari Act after verifying the property described in Ext.P8 inventory. Neither the description of the can given in the inventory prepared by the Assistant Excise Commissioner nor the certificate issued by the learned Magistrate shows the nature of the seal which was affixed on the can. This aspect assumes significance in the context of the evidence given Crl.R.P.No.411/2011 9 by PW1 that it was his personal seal which was used for sealing the can. 21. The above mentioned vital aspects have not been taken into consideration by the trial court as well as the appellate court while appreciating the prosecution evidence. In such circumstances, the petitioner/accused is entitled to be acquitted. 22. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge