P.Sarada W/o Ratnakaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** **Crl.Rev.Pet.No.370 OF 2008** **AGAINST THE JUDGMENT IN CRA 144/2003 DATED 02-08-2007 OF ADDITIONAL SESSN.COURT (ADHOC-II)KASARAGODE** **AGAINST THE JUDGMENT IN SC 483/1999 DATED 28-03-2003 OF THE ASSISTANT SESSIONS COURT, HOSDRUG** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **P.SARADA W/O. RATNAKARAN, MANAKADAVU, PILICODE VAYAL,, PILICODE VILLAGE.** **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.SANTHOSH PETER** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20.05.2020, THE COURT ON 01.06.2020 PASSED THE FOLLOWING:** **Crl.R.P No. 370 of 2008** **2** ## **R. NARAYANA PISHARADI, J** **-----------------------------------------------Crl.R.P No. 370 of 2008** **------------------------------------------------** Dated this the 01[st] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No. 483/1999 on the file of the Court of the Assistant Sessions Judge, Hosdurg. 2. The prosecution case is that, on 19.10.1998, at about 11:00 hours, at the side of a public road at the place Mankadavu in Pilicode Village, PW5 Sub Inspector found the petitioner having in her possession two cans, each can containing two litres of arrack. 3. The petitioner pleaded not guilty to the charge framed by the trial court under Section 55(a) of the Abkari Act. Thereupon, the prosecution examined PW1 to PW6 and marked Exts.P1 to P6 documents and material objects MO1 series. No evidence was adduced by the petitioner/accused. 4. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted her **Crl.R.P No. 370 of 2008** **3** thereunder and sentenced her to undergo rigorous imprisonment for a period of two years 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. 5. The petitioner filed Crl.A.No.144/2003 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against her by the trial court. The appellate court confirmed the conviction against the petitioner under Section 55(a) of the Abkari Act but modified the sentence imposed on her by the trial court. The appellate court reduced the substantive sentence of imprisonment imposed on the petitioner by the trial court to simple imprisonment for a period of one year and confirmed the sentence of fine. 6. The concurrent verdicts of guilty and conviction recorded against her by the courts below and the sentence imposed on her by the appellate court are challenged by the petitioner in this revision petition. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 8. PW5 is the Sub Inspector who detected the offence. PW1 is the Head Constable who was in the police party led by PW5. They have given evidence regarding the occurrence in detail. **Crl.R.P No. 370 of 2008** **4** 9. The evidence of PW5 and PW1 would show that the police party found two cans containing some liquid in the possession of the petitioner and that they took samples of the liquid from each can and seized the cans and the sample bottles as per Ext.P1 mahazar. The fact that the independent witness, who was examined as PW2, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW5 and PW1 in that regard. 10. Ext.P6 is the chemical analysis report in respect of the samples of liquid which were sent to the laboratory for examination. It shows that ethyl alcohol was detected in the samples. 11. Learned counsel for the petitioner has raised several contentions to challenge the conviction entered against the petitioner by the courts below. However, consideration of the two main contentions raised by him would be sufficient to dispose of this revision petition. These two contentions are: (1) There was undue delay in producing the samples and the residue before the court and the delay is not satisfactorily explained by the prosecution. Therefore, chances of tampering with the samples cannot be ruled out. (2) The forwarding note prepared by the investigating officer for sending the samples for chemical examination was not tendered in evidence and **Crl.R.P No. 370 of 2008** **5** not marked by the prosecution. Therefore, there is no evidence to find that the very same samples drawn from the liquid contained in the cans seized from the possession of the petitioner were sent for chemical examination. 12. The occurrence was on 19.10.1998. The material objects were produced before the court only on 30.10.1998. Ext.P5 property list prepared by PW5 establishes this fact. 13. PW5 has given evidence that he had entrusted the cans and the samples with the Station Writer and thereafter he had not seen them. The Station Writer was not examined by the prosecution. The prosecution has also not offered any explanation for the undue delay in producing the cans and the samples before the court. 14. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that it is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate forthwith either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari manual. It was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the **Crl.R.P No. 370 of 2008** **6** court. However, it has also been held that production of the property before court (whenever it is practicable) should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 15. In the instant case, there has been undue delay in producing the cans containing the liquid and the samples in the court and the prosecution has offered no explanation for the delay. Therefore, chance of tampering with the samples cannot be ruled out. 16. The trial court and the appellate court have taken the view that, since the details of the properties seized are mentioned in the first information report and since seizure was reported to the court forthwith by means of the first information report, the delay in producing the properties before the court is of no consequence. This view adopted by the courts below is erroneous and runs contrary to the spirit of the dictum laid down in **Ravi** (supra). 17. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating officer for sending the samples for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found **Crl.R.P No. 370 of 2008** **7** that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 18. In the instant case, it is also to be noted that there is absolutely no evidence as to what seal was used by PW5 for sealing the sample bottles. The description of the properties given in Ext.P5 property list would not show that the cans which contained the residue of liquid were in a sealed condition when they were produced before the court. In fact, there is no recital in Ext.P1 seizure mahazar that the cans were sealed after taking samples of liquid from them. PW5 has also not given evidence to that effect. 19. 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 **Crl.R.P No. 370 of 2008** **8** tested have to be co-related". 20. 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 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. 21. The above mentioned vital aspects have not been considered by the trial court and the appellate court while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the trial court, which stands affirmed by the appellate court, cannot be sustained. The petitioner/accused is entitled to be acquitted. **Crl.R.P No. 370 of 2008** **9** 22. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence punishable under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner is found not guilty of the aforesaid offence and she is acquitted. The bail bond executed by her is cancelled and she is set at liberty. Fine amount, if any, remitted by her shall be refunded to her. **Sd/-R. NARAYANA PISHARADI JUDGE** ## **lsn**