Unnikrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942 Crl.Rev.Pet.No.1766 OF 2016** **AGAINST THE JUDGMENT IN CRA 414/2016 DATED 25-11-2016 OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE** **AGAINST THE JUDGMENT IN SC 373/2015 DATED 23-09-2016 OF III ADDITIONAL ASSISTANT SESSIONS COURT, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **UNNIKRISHNAN AGED 58 YEARS S/O.VELAPPA, KARAT THODUKAYIL, VALANCHERY P.O., KOLAMANGALAM, VARIKKATHUR, MALAPPURAM DISTRICT.** **BY ADV. SRI.RAJESH SIVARAMANKUTTY** ## **- RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA** **BY S.I. OF RAILWAY POLICE, RAILWAY POLICE STATION, KOZHIKODE DISTRICT (CRIME NO.213/2014) BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.08.2020, THE COURT ON 06.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1766/2016 2 ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.1766 of 2016** ## **--------------------------------------------** Dated this the 6[th] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C. No. 373/2015 on the file of the Court of the Assistant Sessions Judge, Kozhikode. 2. The prosecution case is that, on 01.10.2014, at about 20:00 hours, at the Kozhikode Railway Station, PW1 Sub Inspector found the petitioner/accused in Train No.56652 (Kannur-Kozhikode Passenger) with a bag containing 10 bottles, each bottle having the capacity of 500 ml, of Indian Made Foreign Liquor which was permissible to be sold only in Pondichery. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act. The Crl.R.P.No.1766/2016 3 accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P6 documents and MO1 and MO2 material objects. No evidence was adduced by the accused. 5. The trial court found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and 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. 6. The petitioner filed Crl.A.No.414/2016 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to rigorous imprisonment for a period of one month. Crl.R.P.No.1766/2016 4 7. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 8. Heard. Perused the records. 9. PW1 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the police constable who was in the police party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW3 is the independent witness examined by the prosecution. He did not support the prosecution case. He denied having seen the incident. But he admitted his signature in Ext.P2 seizure mahazar. 11. Ext.P6 is the chemical analysis report received in respect of the samples which were forwarded for analysis. It shows that the two samples contained 40.15% and 35.33% by volume of ethyl alcohol. Crl.R.P.No.1766/2016 5 12. 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 by the trial court. The reasons are as follows. 13. PW1 Sub Inspector has given evidence regarding the seizure of the bag containing bottles of liquor from the possession of the accused who was found inside the train. He has also given evidence that he took two bottles of liquor as samples and sealed the sample bottles and affixed label on them. PW1 has not given any evidence as to what happened to the bottles of liquor seized by him as per Ext.P2 seizure mahazar. He has not given any evidence that he produced the material objects before the court or before the investigating officer. 14. PW4 is the Sub Inspector who conduced the investigation of the case. He has stated that he forwarded the properties to the court as per Ext.P5 property list. The occurrence was on 01.10.2014. Ext.P5 property list shows that the properties, including the samples, were produced before the court only on 10.10.2014. There was a delay of nine days in Crl.R.P.No.1766/2016 6 producing the properties, including the samples, before the court. 15. There is no evidence as to who was in custody of the samples till they were produced in the court. There is also no evidence as to the reason for the delay occurred in forwarding the properties, including the samples, to the court. 16. 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. 17. 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 Crl.R.P.No.1766/2016 7 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. In the instant case, PW1 or PW4 has not given any evidence as to the reason for the delay occurred in forwarding the properties, including the samples, to the court. 18. There is also no evidence as to how and in what conditions the properties were kept at the police station till they were produced before the court. When there is delay in producing the samples of the contraband substance in the court and the evidence is that they were kept in the police station, 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** ). In the instant case, even assuming that the samples were kept at the police station till they were produced before the court, there is no evidence as to how and in what conditions they were kept Crl.R.P.No.1766/2016 8 in the police station during the period of nine days from the date of the occurrence till the date they were produced in the court. 19. 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. 20. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive by itself. The samples seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569)** . 21. The trial court as well as the appellate court has not considered the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner/accused cannot be sustained. 22. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 55(a) of the Abkari Act are set aside. The petitioner/ accused is found not guilty of the aforesaid offence and he is Crl.R.P.No.1766/2016 9 acquitted. The bail bond executed by him is cancelled and he is set at liberty. **R. NARAYANA PISHARADI JUDGE** **lsn** **True Copy** **PS to Judge**