VARKEY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** **Crl.Rev.Pet.No.338 OF 2007** **AGAINST THE JUDGMENT IN CRA 246/2005 DATED 19-09-2006 OF VI ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM** **AGAINST THE JUDGMENT IN CC 117/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS,PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **VARKEY, AGED 53 YEARS** **S/O.POULO, KONNURAN HOUSE, NEELEESWARAM KARA, ALUVA TALUK.** **BY ADV. SRI.C.A.JOY** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE REPRESENTED BY EXCISE** **RANGES OFFICE, KALADY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.06.2020, THE COURT ON 17.06.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.338 OF 2007** **2** ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------Crl.R.P. No. 338 of 2007** **-----------------------------------------------------** Dated this the 17[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C No.117/2000 on the file of the Court of the Judicial First Class Magistrate, Perumbavoor. 2. The prosecution case is that, on 14.10.1996, at about 06:30 hours, at the road near Palluppatta Junction in Kaladay Village, PW1 Excise Inspector found the petitioner /accused having in his possession a plastic bag which contained four bottles, each bottle having 750 ml. of arrack. 3. The trial court framed charge against the petitioner for the offence punishable under Section 55(a) of the Abkari Act. The petitioner/accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 and PW2 and marked Exts.P1 to P4 documents and MO1 and MO2 material objects. No evidence was adduced by the petitioner/accused. **Crl.Rev.Pet.No.338 OF 2007** **3** 5. The trial court found the petitioner 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.25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. The petitioner filed Crl.A.No. 246/2005 before the Court of Session, Ernakulam, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. PW1 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. 10. PW2 is the independent witness examined by the prosecution to prove the occurrence. He only stated that he is the author of the signature shown to him in Ext.P1 seizure mahazar. **Crl.Rev.Pet.No.338 OF 2007** **4** 11. Ext.P4 is the chemical examination report in respect of the sample of liquid which was forwarded for analysis. It shows that the sample of liquid contained 34.77% by volume of ethyl alcohol. 12. Learned counsel for the petitioner contended that the evidence adduced by the prosecution is not sufficient to find that the very same sample allegedly drawn from the bottles allegedly seized from the possession of the accused was sent for analysis and tested in the laboratory. 13. The evidence of PW1 is that he seized the four bottles containing liquid from the possession of the accused and that he took sample of liquid from one bottle and that he sealed the sample bottle. There is also a recital in Ext.P1 seizure mahazar that PW1 seized the liquor bottles and took sample of liquid from one bottle and sealed the sample bottle as well as the other four bottles containing the liquid. 14. Ext.P2 is the crime and occurrence report prepared by PW1. The description of the properties seized is given in Ext.P2 report. But, it does not show that any bottle containing sample was seized. 15. The property list prepared by PW1 for producing the material objects before the court was not marked in evidence. I have perused the property list contained in the records of the trial court. The description of the properties given in this list also does not show **Crl.Rev.Pet.No.338 OF 2007** **5** that sample taken by PW1 was produced before the court as per that list. 16. The evidence of PW1 is that he had sent the sample for chemical analysis by himself (not through the court) and obtained report of analysis. He has stated that, since the court did not accept that report, sample was sent through the court. However, there is no evidence to find that any sample was subsequently taken from the bottles of liquid which were produced before the court by PW1 as per the property list. Of course, Ext.P4 report of analysis would show that it relates to the sample sent from the court. However, there is no evidence to find that on which date or by whom the aforesaid sample was taken. 17. The property list contained in the records of the trial court would show that the bottles of liquid allegedly seized from the possession of the accused were produced before the court only on 30.09.1999, that is, nearly three years after the alleged occurrence. PW1 would say that Abkari cases could be compounded during those times and it was the reason for the delay in producing the material objects before the court. This explanation given by PW1 for the inordinate delay in producing the material objects before the court cannot be accepted as convincing or satisfactory. There is no evidence **Crl.Rev.Pet.No.338 OF 2007** **6** to find that the accused had taken any steps for compounding the offence. 18. 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 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. 19. PW1 has given evidence that the bottles containing the liquid were in his safe custody till they were produced before the court. However, there is no evidence as to how and in what manner the properties were kept in his custody till that time. 20. When there is delay in producing the properties before the court and in sending the sample for analysis, it is necessary for the **Crl.Rev.Pet.No.338 OF 2007** **7** prosecution to show how and in what condition the recovered contraband substance and the sample were kept in the meanwhile (See **State of Uttar Pradesh v. Hansraj @ Hansu: (2018) 18 SCC 355** ). 21. There is another lacuna in the prosecution case. The forwarding note for sending the sample from the court was not marked in evidence. 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 proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence or in the court 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** ). 22. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the **Crl.Rev.Pet.No.338 OF 2007** **8** circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". 23. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 24. The aforesaid vital aspects have not been considered by the trial court as well as the appellate court while appreciating the prosecution evidence. In such circumstances, the petitioner/accused is entitled to be acquitted. **Crl.Rev.Pet.No.338 OF 2007** **9** 25. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond, if any, executed by him is cancelled and he is set at liberty. **Sd/-R. NARAYANA PISHARADI JUDGE** **lsn**