Ravi, S/o. Chinna Thampi v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2015-12-02
Court Decision / Holding: The appeal is allowed. The conviction and sentence passed by the trial court are set aside; the accused Ravi is acquitted of the charges. Bail bonds stand cancelled and he is set at liberty.
Final Disposition: Acquitted; conviction set aside; accused released

Parties to the Case

Appellants / Petitioners

Ravi, S/o. Chinna Thampi, Periyavila Veeedu, Ayinkamom Desom, Parassala Villlage

Respondents

The State of Kerala, represented by the Director General of Prosecution, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R.T. Pradeep

Counsels for Respondents

• Ms. Lilly Leslie, Public Prosecutor

Case Synopsis & Summary

This criminal appeal arises from a conviction under Section 58 of the Abkari Act, arising from a 1998 seizure of about 8 litres of arrack from a can found with the appellant near a channel at Parassala. The trial court, after a committal and transfer to the Abkari Court at Neyyattinkara, convicted Ravi and sentenced him to two years of rigorous imprisonment and a fine of Rs. 1 lakh with a three-month default term. The prosecution relied on testimonies of PW2 and PW3 and documentary Exts P1–P6, with PW4 claiming to have collected samples per court orders, though no forwarding note was produced and there was ambiguity about who collected the sample and where it was taken. The appellant contended that crucial formalities were missing: there was no definite evidence of proper sampling, no forwarding note, and no specimen-seal–forwarding-note linkage to guarantee sample integrity; relying on Majeedkutty v. Excise Inspector and Krishnan v. State, it was argued that these omissions compromise the prosecution’s case. The respondent State argued that PW2–PW3 evidence, coupled with Ext P1, sufficed to prove possession of contraband. The High Court, upon scrutiny, found defects in the sampling process and failure to produce a forwarding note and specimen seal, holding that these lapses vitiate the conviction. Consequently, the appeal is allowed, and Ravi is acquitted with bail bonds cancelled and liberty granted.

Provisions of Law Cited

Section 58 of Abkari ActSection 232 Cr.P.C.Section 313 Cr.P.C.

Legal Doctrines & Maxims

null

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel argued that the trial court overlooked vital aspects unfavorable to the prosecution. There is no evidence of proper sampling, and the forwarding note is not produced. The case law (Majeedkutty v. Excise Inspector; Krishnan v. State) emphasizes the necessity of forwarding notes and a specimen seal; failure to produce these documents corrupts the chain of custody and undermines conviction. The absence of a forwarding note and the unclear sampling procedure render Ext. P6 and related materials unreliable, warranting acquittal.

Contentions of Respondents

The State contends that the testimonies of PW2 and PW3, corroborated by Ext. P1, establish possession of contraband and the seizure details, and that the absence of a forwarding note does not nullify the evidence. The circumstantial and documentary records sufficiently establish guilt beyond reasonable doubt, and the court should not disturb the lower court’s findings.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Majeedkutty v. Excise Inspector	2015 (1) KLT 624	Positive	Court relies on this decision to stress the necessity of forwarding notes and specimen seals; their absence vitiates conviction.
Krishnan v. State	2015 (2) KLT SN 8	Positive	Court cites this decision to emphasize mandatory forwarding notes and specimen seal considerations in sampling and analysis.
SC 544/2001	SC 544/2001	Mentioned Only	Mentioned in the caption as the judgment under appeal; not used as a binding authority for the issues discussed.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND DAY OF DECEMBER 2015/11TH AGRAHAYANA, 1937 CRL.A.No. 858 of 2006 -------------------------AGAINST THE JUDGMENT IN SC 544/2001 of ADDL.SESSIONS COURT FOR TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 04-04-2006 APPELLANT/ACCUSED: ------------------------- RAVI, S/O. CHINNA THAMPI, PERIYAVILA VEEDU, AYINKAMOM DESOM, PARASSALA VILLAGE. BY ADV. SRI.R.T.PRADEEP RESPONDENT/COMPLAINANT: --------------------------------- THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY SMT. LILLY LESLIE, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** **---------------------------------------------Crl. Appeal No.858 OF 2006 ---------------------------------------------Dated this the 2[nd] day of December, 2015.** ## **J U D G M E N T** The accused was prosecuted for the offence punishable under Section 58 of Abkari Act. He was found guilty and was therefore convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1 lakh with default clause of rigorous imprisonment for three months. Set off as per law was allowed. ## 2. The facts in brief are as follows: On 22.03.1998, PW3, the Sub Inspector of Police of Parassala Police Station along with other officers was conducting patrol duty and when they reached a channel near Thettiyodu, they found a person with a black can in his hand and a glass in other hand standing near the channel. Seeing the Police, he tried to escape. That was effectively prevented and the can in his possession was seized. It contained about 8 liters of arrack. He was arrested at 7 p.m and the can was sealed. Ext.P1 is the **Crl. Appeal No.858/2006** **2** mahazar prepared at the spot. PW3 returned to the station along with the accused, seized articles and documents and registered Crime No.142/1998 as per Ext.P2 First Information Report. The accused was produced before court and Ext.P3 is the remand report. Ext.P4 is the property list. PW3 filed requisition for forwarding the sample for chemical analysis and obtained chemical analysis report Ext.P5. A good part of the investigation was conducted by him. However, final report was laid by CW6. 3. The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thiruvananthapuram. The said court made over the case to Additional Sessions Court for trial of Abkari Act cases, Neyyattinkara for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the offence under Section 58 of Abkari Act. To the charge, accused pleaded not guilty and claimed to be tried. 4. The prosecution therefore had PWs 1 to 4 examined and Exts.P1 to P6 marked. M.O.s 1 and 2 were got identified and **Crl. Appeal No.858/2006** **3** marked. 5. After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. 6. Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He chose to adduce no evidence. 7. The court below, impressed by the evidence of PWs 2 and 3 and also the fact that Ext.P1 seizure mahazar contains all the details, was inclined to hold that the prosecution has succeeded in establishing the case against the accused. Therefore, he was found guilty and conviction and sentence as already mentioned followed. 8. Sri.R.T. Pradeep, learned counsel appearing for the appellant, contended that the court below has overlooked certain vital aspects which would go against the prosecution case and would go in favour of the accused. Learned counsel pointed out that there is no evidence regarding proper sampling as such even **Crl. Appeal No.858/2006** **4** though PW4, thondi clerk, was examined in this regard. It is also contended that forwarding note is not seen marked in the case. Relying on the decision in _**Majeedkutty** vs._ _**Excise Inspector**_ (2015 (1) KLT 624) it is contended that non production of forwarding note is fatal to the prosecution case. 9. Learned Public Prosecutor, on the other hand, contended that the evidence of PWs 2 and 3 are sufficient to find the accused guilty and detection is properly proved through them. The contemporaneous document namely, Ext.P1 narrates the entire details and therefore there is no reason to upset the findings of the court below. 10. It is not sufficient in law if search and seizure alone are proved. The prosecution must prove that the article found in possession of accused is contraband article. For the said purpose, certain facts will have to be established. It is no doubt true that the evidence of PWs 2 and 3 are uniform and consistent regarding the fact that accused was found standing on the road with a can and glass and he was apprehended by the police. It may also be said that the contents of can was arrack and the **Crl. Appeal No.858/2006** **5** accused was arrested and the contraband was sealed. What is significant is that neither PW2 nor PW3 says that any sample was taken from the spot and sample was sealed and labeled from the place. Neither a reading of the evidence of PWs 2 and 3 nor perusal of Ext.P1 threw any light in this regard. It seems that no sample was taken from the spot. 11. PW4 is the Clerk of the Judicial First Class Magistrate court concerned. She claims to have taken samples as per the orders of the court. She is definite that the endorsement to that effect is available in Ext.P6. Even though PW4 would say that she had acted under the orders of the court, no such order is produced. There is no evidence to show that she is authorized to take sample. Even though she claimed that there is relevant entry in Ext.P6, a reading of Ext.P6 shows that there is no order as such passed by the learned Magistrate authorising PW4 to take sample. Result is that there is considerable confusion regarding the person who has taken sample and the place from where the sample was taken. 12. Apart from the above fact, it is seen that no forwarding **Crl. Appeal No.858/2006** **6** note containing specimen of sample seal is marked in the case. Therefore, there is no guarantee that the sample which reached the laboratory is the sample taken from the contraband seized from the possession of accused. In the decisions in _**Majeedkutty** vs._ _**Excise Inspector**_ (2015 (1) KLT 624) and in _**Krishnan** vs._ _**State**_ (2015 (2) KLT SN 8), the necessity of producing forwarding note and also the necessity to indicate specimen of sample seal has been emphasised. A comparison of the seal found on sample is the only possible way for the court to ensure that the article sent for analysis is the article seized from the possession of accused. It, therefore, could not be said that the filing of forwarding note and sample seal is only an empty formality. These two vital aspects have been omitted to be noticed by the court below and that vitiates the conviction and sentence. 13. For the above reasons, this Court is unable to uphold the finding of the court below that the prosecution has succeeded in establishing the case against the accused. **Crl. Appeal No.858/2006** **7** In the result, this appeal is allowed. The conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence. He stands acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A to Judge.