Sreedevi w/o late Lekshmanan Puthenkandathil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** ## **Crl.Rev.Pet.No.3384 OF 2005(C)** **AGAINST THE JUDGMENT DATED 14.03.2001 IN CC 413/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, CHENGANNUR** **AGAINST THE JUDGMENT IN CRA 105/2001 DATED 01-02-2005 OF ADDITIONAL SESSIONS JUDGE-II, MAVELIKKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SREEDEVI W/O LATE LEKSHMANAN PUTHENKANDATHIL VEEDU, KAITHA VADAKKU MURI,, KUNNAMANGALAM VILLAGE.** **BY ADV. SMT.V.O.PHILOMINA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **SRI SANTHOSH PETER- SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.08.2020, THE COURT ON 07.09.2020 PASSED THE FOLLOWING:** Crl.R.P.No.3384/2005 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.3384 of 2005 ---------------------------------------------Dated this the 7[th] day of September, 2020 ## **O R D E R** The revision petitioner is the second accused in the case C.C.No.413/1999 on the file of the Court of the Judicial First Class Magistrate-II, Chengannur. 2. On 11.03.1997, PW1 Excise Circle Inspector and party were conducting patrol duty. They got reliable information that illicit liquor was kept in the house of the accused in Ward No.II of Chettikulangara Panchayat. When PW1 and the excise party with him reached the aforesaid house at about 17.00 hours, they saw the first accused, who was standing at the courtyard of the house, handing over a can to his wife, the second accused. PW1 seized the can from the second accused and examined its contents and he was satisfied that the liquid in the can was spirit. Crl.R.P.No.3384/2005 3 The excise party then searched the house and seized seven more cans containing spirit and 79 bottles, each having the capacity of 180 ml., of illicit foreign liquor. This, in short, is the prosecution case. 3. Before the trial court, the two accused pleaded not guilty to the offences punishable under Sections 8 and 55(a) of the Abkari Act. Thereupon, the prosecution examined PW1 to PW5 and marked Exts.P1 to P8 documents and MO1 to MO8 material objects. DW1 was examined on the side of the accused. 4. The trial court found both accused guilty of only the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder and sentenced them to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.25,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of two months each. 5. Both accused filed Crl.A.No.105/2001 before the Court of Session, challenging the order of conviction and sentence passed against them by the trial court. During the pendency of the Crl.R.P.No.3384/2005 4 appeal, the first accused died. The appellate court found that the appeal filed by the first accused did not abate on his death. The appellate court confirmed the order of conviction as well as sentence against the two accused and dismissed the appeal. 6. Aggrieved by the concurrent findings of guilty, conviction and sentence made against her by the courts below, the second accused has filed this revision petition. 7. Heard. Perused the records. 8. PW1 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW3 is the Preventive Officer who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 9. PW4 and PW5 are the independent witnesses examined by the prosecution. They admitted their signature in Ext.P2 seizure mahazar. But, they have not given any evidence with regard to the occurrence. Crl.R.P.No.3384/2005 5 10. Ext.P6 is the chemical analysis report received in respect of the samples which were forwarded for analysis. It shows that the samples contained ethyl alcohol of different strength. 11. After perusing the evidence adduced by the prosecution and also the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 12. The alleged occurrence was on 11.03.1997. The records relating to the seizure of the liquor, that is, Ext.P1 search list, Ext.P2 seizure mahazar and Ext.P5 property list, were produced in the court only on 10.09.1997. The material objects, including the samples, were produced in the court only on 10.09.1997. The prosecution has not explained the reason for the inordinate delay in forwarding the aforesaid documents and the material objects to the court. 13. A Division Bench of this Court, in **Ravi v. State of** **Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with Crl.R.P.No.3384/2005 6 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 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. 14. Decisions are umpteen which hold that unexplained delay in producing the samples of the contraband substance before the court creates suspicion that the samples have been tampered with. The possibility of tampering or meddling with the samples cannot be ruled out in such cases. 15. In the instant case, there has been inordinate delay in producing the material objects, including the samples, in the Crl.R.P.No.3384/2005 7 court and the prosecution has offered no explanation for the delay. Therefore, chances of tampering with the samples or the cans and the bottles containing the liquid allegedly seized from the possession of the accused cannot be ruled out. 16. There is also no evidence as to how and in what conditions the properties were kept and who was in custody of the properties and where they were kept till their production before the court. When there is delay in producing the samples of the contraband substance in the court, the prosecution has to adduce evidence to show as to how and in what conditions the samples were preserved at the police station (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). 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 that the prosecution has Crl.R.P.No.3384/2005 8 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 aforesaid circumstances, there is no assurance that the very same samples allegedly taken by PW1 at the spot of the occurrence were produced in the court and forwarded for analysis without any tampering. 19. Mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 20. The trial court as well as the appellate court has not properly considered the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction Crl.R.P.No.3384/2005 9 entered against the petitioner cannot be sustained. 21. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner by the trial court 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. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge