THEYYUNNI, S/O NARAYANAN v. THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934** ## **Crl.Rev.Pet.No. 498 of 2010 (B)** **------------------------------------------CRA.NO.75/2008 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-I, MANJERI SC.NO.225/2007 of ASISTANT SESSIONS COURT, MANJERI** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:-** **-----------------------------------------------------------------------** **THEYYUNNI, S/O. NARAYANAN, AKAMPADAM, PAINGAKODU, ASSANPOTTI, CHALIYAR, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/RESPONDENT/STATE:-** **-----------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, NILAMBUR EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. R.P. No.498 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of September, 2012** ## **O R D E R** The accused in Sessions Case No.225/2007 before the Assistant Sessions Judge, Manjeri is the revision petitioner in this Crl. R.P. The prosecution case was that the petitioner was apprehended transporting 3 litres of arrack at a panchayat road situated near Chaliyar Estate Gate at Akampadam amsom, Paingakode Desom, in contravention of the provisions of the Abkari Act. The revision petitioner was charged with the commission of an offence punishable under Section 8 (1) of the Abkari Act. The charge sheet was originally filed before the Judicial First Class Magistrate's Court, Nilambur, who committed the case to the Court of Sessions, Manjeri, who made over the case to the Assistant Sessions Judge, Manjeri for trial and disposal. The Assistant Sessions Judge convicted the revision petitioner under Section 8 (1) of the Abkari Act and sentenced the revision petitioner to undergo simple imprisonment for six Crl. R.P. No.498 of 2010 **-2-** months and to pay a fine of Rs.1 lakh with a default sentence of 3 months further simple imprisonment, if the fine is not paid. The revision petitioner filed an appeal before the Sessions Court, Manjeri, who confirmed the conviction, but reduced the substantive sentence to three months simple imprisonment, while confirming the imposition of fine of Rs.1 lakh. Those orders are under challenge in this Crl. R.P. 2. The revision petitioner raises two contentions. First is that, there was considerable delay in production of the contraband article before the Magistrate, insofar as the detection was on 13.5.2006 and the contraband was produced before the Nilambur Magistrate's Court only on 17.05.2006. That would vitiate the whole prosecution in view of the decisions of this Court in **Dominic v. State of Kerala [1989 (1) KLT 601]** , **Narayani v. Excise Inspector [2002 (3) KLT 725]** , **Sathi v. State of Kerala [2007 (1) KLT SN 57 (C.No.82)]** and **Rajendran v. State of Kerala [2007 (1) KLT 971]** wherein it has been Crl. R.P. No.498 of 2010 **-3-** held that the delay in production of the contraband articles before the Magistrate would itself vitiate the prosecution. The 2[nd] contention raised is that, the labels affixed on the sample stated to have been taken from the contraband article did not contain the particulars required to be contained therein, whereas, the OR number which was not expected to be in the label was present in all the samples. According to the revision petitioner, the OR numbers are assigned only after the contraband article and samples are taken to the Excise Office where the registers are kept and the Excise Officer who was examined as a witness before the Assistant Sessions Judge has specifically admitted that after the samples were taken the labels were not changed in any manner. Therefore, according to the counsel for the revision petitioner, these are circumstances which would warrant acquittal granting benefit of doubt to the accused. 3. The learned Public Prosecutor would contend that the delay in production of the contraband article before the Nilambur Magistrate was explained by PW7, which Crl. R.P. No.498 of 2010 **-4-** explanation was duly accepted by the courts below. He points out that, on the particular day, when the seizure was made, the Magistrate at Nilambur was on leave and the Magistrate at Ponnani was in charge. The contraband article and the accused along with the records were produced before the Ponnani Magistrate, who remanded the accused to custody for 14 days. The contraband article which was produced along with other papers before the Ponnani Magistrate was returned to the Excise Officer for production before the Nilambur Magistrate, which was retained in the custody of the authorised officer, which was duly produced before the Nilambur Magistrate on 13.05.2006, is the contention raised by the learned Public Prosecutor. As far as the discrepancy in the labels are concerned, the Public Prosecutor would state that there is no discrepancy at all insofar as the labels have been duly sealed and the same has been authenticated by the Excise Officer as well as the accused. 4. I have considered the rival contentions in detail. Crl. R.P. No.498 of 2010 **-5-** 5. In view of the decision in **Narayani's case** (supra)in the absence of any evidence to prove that the residue and sample were kept in proper custody till the date of production before Court, the chance of tampering with the sample taken and the residue seized cannot be ruled out especially when there is no evidence as to who was in possession of the contraband till it was produced in court. Therefore, in this case, when the seizure was on 13.5.2006 and the contraband article was produced before the concerned Magistrate only on 17.5.2006, it was incumbent on the prosecution to prove the custody of the contraband article between 13.5.2006 and 17.5.2006. The explanation offered by PW7 for the delay in production of the contraband article and samples before the Nilambur Magistrate is that the contraband article, samples, case records and the accused were sent to the Nilambur Magistrate on 13.5.2006. The Nilambur Magistrate was on leave on that day. The Ponnani Magistrate was in charge. Therefore, the accused, the contraband article and samples Crl. R.P. No.498 of 2010 **-6-** along with other papers were produced before the Ponnani Magistrate, who had returned the same for production before the Nilambur court after remanding the accused to custody. The counsel for the petitioner would argue that there was no material before the court to come to the conclusion that the contraband article and samples were produced before the Ponnani Magistrate on 14.5.2006 and that the Ponnani Magistrate returned it to the Excise officials for production before the Nilambur Magistrate. He submits that in the remand report the Magistrate had not endorsed that the contraband article and samples were produced along with the accused. He would further heavily rely on Ext.P7 covering letter by which the Ponnani Magistrate forwarded the papers to the Nilambur Magistrate, as also the property list. He submits that neither in the covering letter nor in the property list is there any indication that the contraband article and samples produced before the Ponnani Magistrate and that the Ponnani Magistrate returned it to the Excise officials for Crl. R.P. No.498 of 2010 **-7-** production before the Nilambur Magistrate. I find considerable merit in the contention raised by the petitioner. I have perused the remand report. Of course, in the remand report the Excise Officer has stated that the contraband article and samples were produced. But the order of remand passed by the Ponnani Magistrate does not indicate that the contraband article and samples were produced before him. Ext.P7 is the covering letter by the Judicial 1[st] Class Magistrate, Ponnani to the Judicial 1[st] Class Magistrate, Nilambur, which reads thus: “I am forwarding herewith occurrence report and connected papers in Ponnani Excise Cr. No.11/06 of Nilamboor Range duly indexed. Receipt of the same may be acknowledged. ## Index 1. Report 1 - 2. 2. Mahazar 3 - 4. 3. Occurrence Report 5 - 6 4. Arrest and other papers 7 -20” That does not contain any reference to the contraband article or the samples. That being so, there is no clear evidence to prove that the contraband article and samples were in fact produced before the Ponnani Magistrate on 14.05.2006 as claimed by PW7. In view of the decisions Crl. R.P. No.498 of 2010 **-8-** quoted by the counsel for the revision petitioner, in the absence of evidence to prove that the residue and samples were kept in proper custody till the date of production before the Court, the chance of tampering with the samples taken and the residue seized cannot be ruled out and on that ground the benefit of doubt has to be given to the accused. Here, although the courts below inferred from the remand report that the contraband article and samples were in fact produced before the Ponnani Magistrate, I am of opinion that the records show that there was no evidence to prove the same, especially in view of Ext.P7 covering letter of the Ponnani Magistrate, which does not show that the contraband article and samples were produced before him. 6. I find merit in the second contention of the petitioner also. Ext.P6 is the forwarding note by which the Excise Inspector, Nilambur forwarded the sample taken to the Regional Chemical Examiner for analysis through the Nilambur Magistrate Court. In column No.5, which relates Crl. R.P. No.498 of 2010 **-9-** to whether the bottles are labelled indicating the nature of article, Crime No. and quantity of sample, the Excise Inspector, Nilambur Range has stated “Yes”. But in the evidence of PW1-Assistant Excise Inspector, it is specifically stated that in the label on the sample the nature of article has not been written as also the quantity of the article. The sample was sealed only by the personal seal of the Assistant Excise Inspector also. Therefore, I am of opinion that there is clear absence of evidence to prove that the residue and sample were kept in proper custody during the period from 13.05.2006 to 17.5.2006 creating serious doubts about the veracity of the prosecution version in respect of the samples and the contraband article insofar as the prosecution has not been able to prove beyond any reasonable doubt that the contraband article and samples were kept in proper custody between 13.5.2006 to 17.5.2006. On that account, the accused is entitled to benefit of doubt. Therefore, giving benefit of doubt to the accused, I am inclined to interfere with the judgments of the courts below. Crl. R.P. No.498 of 2010 **-10-** Accordingly, the judgments of the Assistant Sessions Judge, Manjeri in S.C. No. 225/2007 and that of the Court of Sessions, Manjeri Division in Criminal Appeal No.75/2008 are quashed. The accused is acquitted of the offence charged giving him the benefit of doubt. His bail bond is cancelled and he is directed to be set at liberty forthwith. The Criminal Revision Petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/