U.K. Sharmish; K. Santosh; M. Santosh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942** ## **Crl.Rev.Pet.No.1726 OF 2010** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.1085/2008 DATED 04-01-2010 OF ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC I), KOZHIKODE** **AGAINST THE JUDGMENT IN SC NO.56/2003 DATED 04-12-2008 OF PRINCIPAL ASSISTANT SESSIONS COURT, KOZHIKODE** ## **- REVISION PETITIONERS/APPELLANTS/ACCUSED 1 3:** **1 U.K. SHARMISH, AGED 35 YEARS S/O GOPI, SAVITHRI NIVAS, MOONNAMPEEDIKA,, KANDAMKUNNU AMSOM, KOOTHUPARAMBA,, KANNUR DISTRICT.** **2 K.SANTHOSH, S/O.GOVINDAN MARAKKATTE HOUSE, MOONNAMPEEDIKA,, KANDAMKUNNU AMSOM, KOOTHUPARAMBA,, KANNUR DISTRICT.** **3 M.SANTHOSH, S/O.NANU KOTTARAMPOYIL HOUSE, KOOTHUPARAMBA,, KANNUR DISTRICT.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, NADAKKAVU POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1726 OF 2010** 2 ## **ORDER** **Dated this the 18th day of November 2020** The revision petitioners were the accused 1 to 3 in SC No.56 of 2003 on the file of the Principal Assistant Sessions Court-Kozhikode and the appellant in Crl.A.No.1085 of 2008 on the file of the Additional Sessions Court, Fast Track (Adhoc I), Kozhikode. The offences alleged against the accused are punishable under Sections 8(2) and 55(a) of the Kerala Abkari Act. 2. The prosecution case in brief is that, on 17.06.2000, at 12.15 p.m., PW1, the Sub Inspector of Police, Nadakkavu Police Station received reliable information that the Car bearing registration No.PY01-H-7320 was transporting the contraband Spirit in contravention of the provisions of Abkari Act and Rules framed thereunder and accordingly, PW1 and police party proceeded to the road and stood infront of Nadakkavu Police Station. While so, they saw an Ambassador Car bearing registration No.PY-01-H-7320 coming from the northern side. On seeing the vehicle, PW7 gave signal to stop the vehicle. However, the driver of the Car did not stop the vehicle and drove away through the Kannur road. There upon, PW7 and police party chased the Car. In the meanwhile, the vehicle entered into **Crl.Rev.Pet.No.1726 OF 2010** 3 Wayanad road and when the vehicle reached near the Victory Service Station, East Nadakkavu, the vehicle suddenly hit against a jeep and then again hit on the back of another Car. The vehicle further proceeded and hit against the compound wall of Victory Service Station causing extensive damage to the boundary wall. Thereafter, the driver of the Car and two other passengers who were travelling in the Car alighted from the Car and made an attempt to escape. The police party chased and intercepted them. By that time, smoke and flames were seen from the Car. Simultaneously, PW7 and police party noticed free flow of Spirit from the Car. Sensing danger, due intimation was given to the fire force and the firemen attached to the fire force rushed to the the scene of occurrence and extinguished the fire. On examination of the Car, PW7 and party noticed two tanks fitted beneath to the front seat and rear seat of the Car containing contraband Spirit. 3. During the trial of the case, PWs 1 to 10 were examined and marked Exts.P1 to P12 and MOs I to III series on the side of the prosecution. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. **Crl.Rev.Pet.No.1726 OF 2010** 4 According to the 1[st] accused, both the 1[st] and 2[nd] accused were residing in a temporary shed at Civil Station, Kozhikode in connection with a construction work. On 17.06.2000, both of them went to Kairaly Theatre, Kozhikode and when they were returning to Civil Station through Nadakkavu, the night patrolling policemen questioned them and directed them to show their identity card. The 1[st] accused further stated that since they could not show the identity card as demanded by the police, they were brought to the Nadakkavu Police Station and initiated false and frivolous case against them. However, when the trial court called upon to enter on their evidence, no defence evidence was adduced. _4._ After having heard both sides, the trial court found the accused 1 to 3 guilty of the offence punishable under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years each and also to pay a fine of Rs.1,00,000/- each, in default of payment of fine to undergo imprisonment for a period of six months each subject to the provisions under Section 428 of the Cr.P.C. The accused were found not guilty for the offence punishable under Section 8(2) of the Abkari Act and accordingly they were acquitted thereunder. Challenging the conviction and sentence, the **Crl.Rev.Pet.No.1726 OF 2010** 5 accused 1 to 3 preferred CrilAppeal No.1085 of 2008 before the Sessions Court, Kozhikode. The learned Sessions Judge made over the case to the Additional Sessions Court, Fast Track (Adhoc I), Kozhikode for hearing. By its judgment dated 04.10.2010, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Hence, the accused 1 to 3 are before this Court in revision. 5. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. _6._ PW6 is the owner of Maruthi Car bearing registration No.KL-11-G-1688. He stated before the court that his Car met with an accident at night on 17.06.2000, while he was driving the Car from Calicut Town–Eranhipalam. According to him, while so an Ambassador Car came and hit on the back side of his vehicle and caused extensive damage to it. He stated that he had sustained a loss of Rs.10,000/- as a result of the accident. PW7 is the Sub Inspector Nadakkavu Police Station, who stated that on getting information he and police party proceeded to the road infront of the Nadakkavu Police Station and while so, one Ambassador Car bearing registration No. PY01-H-7320 came to the scene from northern side and when he gave **Crl.Rev.Pet.No.1726 OF 2010** 6 signal to stop the vehicle, the driver of the Car drove away the vehicle without obeying his instructions through the Kannur road. He would say that the police party chased the Car and in the meanwhile, the vehicle entered into Wayanad road from Head Postoffice junction. He further stated that, when the Car reached at Victory Service Station, East Nadakkavu, the vehicle hit against a jeep and again hit on the back of another Car and it again went ahead and hit against the compound wall of the Victory Service Station. Immediately after the occurrence, according to PW7, the driver and two more persons from the Car came out and made an attempt to flee away from the scene of occurrence. The policemen intercepted them and questioned them. Then they saw the flow of Spirit from the offending Car. Soon thereafter, PW7 informed the same to the fire force department and the fire-forcemen rushed to the scene of occurrence and put off the fire. When the police party conducted search inside the Car, it was found that the two tanks beneath front seat and rear seat of the Car containing contraband Spirit. Since the accused transported Spirit through the offending Car, he seized the 'thondi' articles and arrested the accused . Thereafter, the samples were taken in three bottles for chemical examination. The sample bottles were sealed and labelled at **Crl.Rev.Pet.No.1726 OF 2010** 7 the spot, in accordance with law. The remaining Spirit was taken in three Cans and the Cans were sealed and labelled as per the Rules. He would say that two Cans with the capacity of 35 liters each and one Can with the capacity of 50 litres. PW7 identified MOI series Cans and MOIII burnt articles before the court. After seizure and arrest the accused were brought to the policestation and registered Ext.P8 FIR for the offence punishable under Section 8(2) and 55(a) of the Abkari Act. PW7 identified the accused in court. _7._ PW5 is the one of the police constables attached to the Nadakkavu Police Station accompanied PW7 on 17.06.2000 at about 11 p.m. He supported the version of PW7. 8. PW10 is the Assistant Sub Inspector of Police, Nadakkavu Police Station, who conducted the investigation, prepared Ext.P1 scene mahazar, questioned the witnesses, recorded their statements and filed the final report before court. According to him, as per Ext.P12 chemical examination report, Ethyl alcohol was detected in the sample. He prepared Ext.P11 forwarding note. 9. PW2 is the one of the ministerial staff attached to the Judicial First Class Magistrate Court-IV, Kozhikode. He stated that he received the sample bottles involved in the crime on 27.06.2000 and **Crl.Rev.Pet.No.1726 OF 2010** 8 the samples were sent for chemical examination on 21.08.2000 as per Rules. The trial court mainly relied on the oral evidence of PWs 2, 5, 7 and 10 and entered a finding that the accused 1 to 3 illegally transported the contraband Spirit in violation of the Abkari Act and the Rules framed thereunder. All other witnesses examined by the persecution have not supported the prosecution case. 10. Relying on **Ramankutty v. Excise Inspector Chelannur Range** [2013(3)KHC 308], the learned counsel for the revision petitioners contended that unexplained delay in producing the contraband before the court after seizure is fatal to the prosecution case. It is further contended that though the delay is too short, the non-compliance of the mandatory requirements to be followed at the time of arrest and nondisclosure of the custodian of the contraband during the delayed period make the delay decisive and fatal to the prosecution case. 11. On going through the prosecution case, it is a fact that PW7 and party seized the contraband Spirit from the offending vehicle on the date of occurrence. Admittedly, the occurrence in this case took place on 17.06.2000. Going by the evidence of PW2 it is clear that the contraband was produced before court only on 27.06.2000. There is a **Crl.Rev.Pet.No.1726 OF 2010** 9 delay of nine complete days in producing the contraband before the court. I have perused the oral evidence of PWs 5, 7 and 10. There is nothing on record to show that the contraband during the delayed period was kept under safe custody for explainable reason. In the case on hand no explanation was offered. No satisfactory explanation was forthcoming from PW7 explaining the cause of delay and custodian of the contraband. On going through Ext.P7 seizure mahazar, Ext.P10 property list and Ext.P11 forwarding note, no sample seal was seen affixed therein. It is the definite case of PW7 that the contraband seized and thereafter sample was taken and sample seals were affixed therein. To prove transparency regarding the act of sampling, it is essential on the part of PW7 to affix sample the seal at least with the forwarding note. The same is not seen done. Considering the delay in producing the contraband before court, it is very difficult to hold that the chemical analysis report in this case relates to the same sample seized from the spot as stated by PW7. The absence of sample seal in the forwarding note is also relevant in this context. Merely because, huge quantity of contraband Spirit was seized from the occurrence place, the same itself is not sufficient to hold that the accused were mainly responsible for committing the crime. In a criminal case, it is **Crl.Rev.Pet.No.1726 OF 2010** 10 the duty of the prosecution to prove the case beyond reasonable shadow of doubt. 12. Both the trial court and the appellate court appreciated the evidence erroneously and convicted and sentenced the accused wrongly. Hence, the conviction and sentence imposed by the trial court, which have been confirmed in appeal are liable to be set aside. In the result, the revision petition is allowed. The revision petitioners/accused 1-3 are found not guilty for the offence punishable under Section 55(a) of the Abkari Act and they are acquitted thereof. Cancelling their bail bonds, this Court directs that they be set at liberty. If any fine amount is remitted during the pendency of this revision, pursuant to an interim order passed by this Court, the same shall be re-funded to the revision petitioners/accused 1-3, in accordance with law. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** dlk/18.11.2020