Ratheesh vs State Of Kerala
2021 Latest Caselaw 499 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

    THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                    Crl.Rev.Pet.No.332 OF 2015

 AGAINST THE JUDGMENT IN SC NO.329/2010 OF THE ASSISTANT SESSIONS
                COURT, CHENGANNUR DATED 04.07.2012

AGAINST THE JUDGMENT IN CRL.APPEAL NO.238/2012 DATED 24-04-2014 OF
           ADDITIONALSESSIONS COURT - III, MAVELIKKARA


REVISION PETITIONER/APPELLANT/ACCUSED:

             RATHEESH, AGED 32 YEARS
             S/O.RAVEENDRAN,
             THARAYIL VEEDU,
             PRAYAR MURI,
             PANDANAD VILLAGE,
             CHENGANNUR TALUK,
             ALAPPUZHA DISTRICT.

             BY ADVS.
             SRI.AJITH MURALI
             SRI.K.V.ANIL KUMAR
             SMT.SWAPNA VIJAYAN

RESPONDENT/COMPLAINANT/STATE:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM-682031.


             SR.PUBLIC PROSECUTOR SRI. M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.Rev.Pet.No.332 OF 2015
                                   2


                                  ORDER

Dated this the 7th day of January 2021

In a prosecution under Section 8(2) r/w 8(1) of the Kerala

Abkari Act, the revision petitioner was convicted and sentenced

to undergo rigorous imprisonment for three months and also to

pay a fine of Rs.1,00,000/- and in default of payment of fine to

undergo simple imprisonment for one month in SC No.329 of

2010 on the file of the Assistant Sessions Court, Chengannur.

The revision petitioner preferred Crl.Appeal No.238 of 2012

before the Additional Sessions Court-II, Mavelikkara. By its

judgment dated 24.04.2014, the learned Additional Sessions

Judge dismissed the appeal confirming the conviction and

sentence imposed on the revision petitioner. Feeling aggrieved,

the revision petitioner is before this Court.

2. The prosecution case in brief is that, on 26.03.2007 at

6.00 p.m, the accused was found carrying one litre of arrack in a

1.5 litre plastic bottle in the road infront of the Trikkypurath

Mahavishnu Temple at Prayar muri contrary to the provisions

contained under the Abkari Act and Rules framed thereunder.

 Crl.Rev.Pet.No.332 OF 2015



         3.     During the trial of the case,     PWs 1 to 5 were

    examined     and marked Exts.P1 to P6 and MO1 on the

prosecution side. On closing the evidence of the prosecution, the

accused was questioned under Section 313(1)(b) Cr.P.C. He

denied all the incriminating circumstances appearing in the

evidence against him. However, no defence evidence was

adduced, when the accused was called upon to enter on his

defence.

4. Heard Sri.K.V.Sreeraj, the learned Amicus Curiae

appointed by this Court for the revision petitioner and

Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.

5. The learned Amicus Curiae for the revision petitioner

submitted that no forwarding note was marked in this case. The

learned Amicus Curiae further submitted that Ext.P1 seizure

mahazar prepared by PW1 on the date of occurrence was not

produced in court in time.

6. The learned Senior Public Prosecutor on the other

hand submitted that all the material documents were produced

before the court along with the accused on 26.03.2007. Crl.Rev.Pet.No.332 OF 2015

According to the learned Public Prosecutor, both the trial court

and the appellate court concurrently held that the accused was

found in possession of one litre of arrack in a plastic bottle

through the road infront of the Trikkypurath Mahavishnu

Temple at Prayar muri. It was submitted that unless the findings

are perverse, it would not be proper for the revisional court to

interfere in revision.

7. Ext.P6 is the certificate of chemical analysis prepared

by the Chemical Examiner to Government of Kerala. Ext.P6

would show that one sealed bottle containing 200 ml of clear and

colourless liquid alleged to be arrack involved in Crime No.52 of

2007 of Chengannur Excise Range was received for chemical

analysis. On analysis, the chemical examiner reported the

presence of ethyl alcohol in the sample. The sample of liquid

contained 33.39% by volume of ethyl alcohol. When the

prosecution relies upon Ext.P6 Chemical Analysis Report in

respect of sample sent for analysis to prove the offence against

the accused, it is obligatory on the part of the prosecution to

prove that the contraband which was examined by the chemical Crl.Rev.Pet.No.332 OF 2015

examiner was the very same sample drawn from the contraband

seized. The prosecution has to prove all the links starting from

the seizure of the sample till the same reached the hands of the

chemical examiner. In the case on hand it is clear that Ext.P4

crime and occurrence, Ext.P3 arrest notice, Ext.P2 arrest memo

etc. were produced along with the accused on 26.03.2007 before

the learned Magistrate. In all the above documents, the learned

Magistrate affixed his dated signature with reference to the time

of receipt. Ext.P4 would show that the learned Magistrate

received the crime and occurrence on 26.03.2007 at 9.10 p.m.

However, the seizure mahazar prepared by PW1 on 26.03.2007

was received by the Excise Inspector on 26.03.2007 as per the

endorsement thereon. However, no endorsement is made

therein by the learned Magistrate. Ext.P1 seizure mahazar is an

important document to prove the prosecution case. There is yet

another lacuna in the prosecution case. The copy of the

forwarding note allegedly prepared by PW1 for sending the

sample for chemical analysis was not marked in evidence. The

forwarding note is expected to contain the specimen impression Crl.Rev.Pet.No.332 OF 2015

of the seal used for sealing the bottles containing the samples. In

the absence of forwarding note marked in evidence, it cannot be

assumed that the very same samples taken at the spot of the

occurrence had reached the chemical examiner for chemical

analysis in a tamper proof condition. There is nothing on record

to show that Ext.P1 seizure mahazar was produced before the

court on 26.03.2007 as alleged by the prosecution. In the

absence of specific endorsement thereon, it is very difficult to

hold that the contraband seized by PW1 in a sealed condition was

produced before the court along with the accused on the date of

production of the accused before the court. In the above

circumstances, the mere production of a laboratory report that

the sample tested contained 33.39% by volume of ethyl alcohol

cannot be a conclusive proof by itself. There is nothing on record

to show that the sample seized and that tested by the chemical

examiner are correlated.

8. In the absence of legal evidence, the trial court went

wrong in convicting the accused relying on the oral evidence of

PW1 itself. Both the trial court and the appellate court Crl.Rev.Pet.No.332 OF 2015

erroneously appreciated the evidence on record without

considering the above legal aspects involved. Hence, the

conviction and sentence rendered by the trial court, which was

later confirmed by the appellate court are liable to be set aside.

In the result, the revision petition is allowed. The revision

petitioner/accused is found not guilty for the offence under

Section 8(2) r/w 8(1) of the Abkari Act and he is acquitted

thereunder. Cancelling his bail bond this Court directs that he be

set at liberty. If any fine amount is deposited by the accused

during the pendency of the revisional proceeding before the trial

court, the same shall be refunded to the accused/revision

petitioner, in accordance with law. Pending applications, if any,

stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE

dlk/07.01.2021