Venu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** **Crl.Rev.Pet.No.2762 OF 2005** **AGAINST THE JUDGMENT IN CRA 640/2001 DATED 25-10-2004 OF ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK (ADHOC-II), KOZHIKODE AGAINST THE JUDGMENT IN CC 1081/1997 DATED 31-10-2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KOYILANDY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **VENU, S/O.RAMAN THARIPPAKUNI MALAYIL (KOODATHINKAL MEETHAL), KOKKALLOR AMSOM, MANNAPOYIL DESOM,, KOYILANDY TALUK.** **BY ADV. SRI.SANTHARAM.P** ## **RESPONDENT/COMPLAINT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HGIH COURT OF KERALA,, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.07.2020, THE COURT ON 14.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.2762/2005 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.2762 of 2005 ------------------------------------------Dated this the 14[th] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.1081/1997 on the file of the Court of the Judicial First Class Magistrate, Koyilandy. 2. The prosecution case is that, on 14.07.1996, at about 18:00 hours, when PW2 Circle Inspector conducted search of the house of the petitioner/accused, he found a can containing two litres of arrack in a room in the house. 3. The petitioner/accused pleaded not guilty to the offence under Section 55(a) of the Abkari Act which was charged against him. Thereupon, the prosecution examined PW1 to PW5 and marked Exts.P1 to P7 documents and MO1 material object. No evidence was adduced by the petitioner/accused. Crl.R.P.No.2762/2005 3 4. 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 simple imprisonment for a period of six months and also to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 5. The petitioner filed Crl.A.No.640/2001 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 as well as the sentence against the petitioner and dismissed the appeal. 6. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 8. PW2 is the Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW4 is the police constable who was in the police party led by PW2. His Crl.R.P.No.2762/2005 4 evidence corroborates the testimony of PW2 regarding the material particulars of the occurrence. 9. PW3 is the independent witness examined by the prosecution. He gave evidence that the police party seized arrack from the premises of the house of the accused and he was then present there. PW3 identified his signature in Ext.P3 search list. He also identified MO1 in the court as the can containing arrack seized by the police. 10. Ext.P6 is the chemical examination certificate received in respect of the samples which were forwarded for analysis. It shows that the samples of liquid contained 30.03% and 29.61% by volume of ethyl alcohol. 11. After perusing the evidence adduced by the prosecution and perusing the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 12. PW2 Circle Inspector, who detected the offence, has given evidence that he arrested the accused who was present at the spot of the occurrence. However, PW2 has not given Crl.R.P.No.2762/2005 5 evidence that any arrest memo was prepared on arresting the accused. He has also not given evidence that intimation regarding the arrest was given to any relative or friend of the accused. The arrest memo, if any, prepared by PW2 on arresting the accused was not produced and marked in evidence. In such circumstances, implicit reliance cannot be placed upon the testimony of PW2 that the accused was at the spot of the occurrence and that he arrested the accused from there. 13. Arrest memo is a crucial document which is required to be prepared contemporaneously at the time of arrest of an accused person. Absence of arrest memo in evidence creates suspicion as to the arrest of the accused at the time and place alleged by the prosecution. When arrest of the accused from the spot is not proved, the prosecution case would fall to ground (See **Ramankutty v. Excise Inspector: 2013(3) KHC 308** ). 14. The evidence of PW2 and PW4 is that the house of the accused was searched and MO1 can containing arrack was found in a room in the house. What is recorded in Ext.P3 search list is also that the house was searched and the can containing arrack Crl.R.P.No.2762/2005 6 was found in the room on the southern side of the house. However, the independent witness, who was examined as PW3 by the prosecution and who has supported the case of the prosecution, has given evidence that it was from the premises of the house that the can containing arrack was seized. He has specifically stated on cross-examination that he pointed out the can containing arrack to the police at the shed which was used for keeping wooden logs. The evidence given by PW3 in this regard is inconsistent with the testimony of PW1 and PW4 and the prosecution case. Inspite of giving evidence to that effect, PW3 was not declared hostile to the prosecution. Then the evidence of PW3 is binding on the prosecution. 15. When the evidence of a prosecution witness is inconsistent with the prosecution case and when such witness is not declared hostile to the prosecution, his evidence is binding on the prosecution ( See **Javed Masood v. State of Rajasthan: AIR 2010 SC 979** ). 16. PW2 has given evidence that he seized MO1 can containing arrack and produced it before the Sub Inspector of Crl.R.P.No.2762/2005 7 Balussery Police Station as per Ext.P4 report. PW5 is the Sub Inspector who conducted the investigation of the case. He has deposed that he produced the material objects before the court. He has also stated that it was on 15.07.1996 that he forwarded the properties to the court. However, there is no record in evidence to show the date on which the properties were produced before the court. The list of properties, which should have been prepared by PW5 for producing the material objects in the court, was not tendered in evidence and it was not marked. Therefore, there is no evidence to find that the very same samples allegedly drawn by PW2 at the spot of the occurrence were produced before the court without any tampering. 17. Ext.P5 is the copy of the forwarding note prepared and submitted by PW5 Sub Inspector for sending the sample for chemical analysis. It bears the specimen of the seal which was affixed on the bottles containing the samples. However, PW2 has not given any evidence as to the nature of the seal used by him for sealing the bottles containing the samples or the can containing the residue. Therefore, there is no assurance that the Crl.R.P.No.2762/2005 8 specimen of the seal provided in the forwarding note was of the seal which was actually affixed by PW2 on the sample bottles. It follows that, there is also no assurance that the very same samples allegedly drawn by PW2 at the spot of the occurrence were produced before the court and forwarded for chemical analysis and that Ext.P6 chemical analysis report relates to those samples. ## 18. 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 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"._ ## 19. 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 under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further Crl.R.P.No.2762/2005 9 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. 20. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. 21. 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 Crl.R.P.No.2762/2005 10 aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge