Parambath Puthiya Purayil ... vs The Excise Inspector
2021 Latest Caselaw 504 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.619 OF 2007

  AGAINST THE JUDGMENT IN CRL.APPEAL NO. 221/2001 OF ADDITIONAL
           SESSIONS JUDGE, THALASSERY DATED 15.12.2006

 AGAINST THE JUDGMENT IN CC NO.680/1997 OF JUDICIAL MAGISTRATE OF
             FIRST CLASS, TALIPARAMBA DATED 24.04.2001


REVISION PETITIONER/APPELLANT/ACCUSED:

             PARAMBATH PUTHIYA PURAYIL AVEENDRAN
             S/O. NARAYANAN, AGED 38 YEARS,,
             PILATHARA, CHERUTHAZHAM AMSOM DESOM,,
             KANNUR TALUK, KANNUR DISTRICT.

             BY ADVS.
             SRI.V.A.SATHEESH
             SRI.V.JOHN SEBASTIAN RALPH
             SRI.V.T.MADHAVANUNNI

RESPONDENT/COMPLAINANT/STATE:

      1      THE EXCISE INSPECTOR
             TALIPARAMBA EXCISE RANGE OFFICE,,
             KANNUR DISTRICT.

      2      THE STATE OF KERALA
             BOTH RESPONDENTS ARE REPRESENTED BY THE,
             PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,, AT ERNAKULAM.



             BY 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.619 OF 2007
                                      2




                                      ORDER

Dated this the 7th day of January 2021

In a prosecution under Section 55(a) of the Kerala Abkari

Act, the revision petitioner was convicted and sentenced to

undergo simple imprisonment for six months and to pay a fine of

Rs.25,000/- and in default of payment of fine to undergo simple

imprisonment for two months in CC No.680 of 1997 on the file of

the Judicial First Class Magistrate Court, Taliparamba.

Challenging the conviction and sentence, the accused preferred

Crl.Appeal No.221 of 2001 before the Additional Sessions Court,

Thalassery. By its judgment dated 15.12.2006, the learned

Additional Sessions Judge dismissed the appeal confirming the

conviction and sentence passed by the trial court.

2. The prosecution case in brief is that, on 13.01.1997 at

about 4.30 p.m, the accused was found transporting 15 bottles of

Indian Made Foreign Liquor ( nine bottles containing 375 ml and

six bottles containing 180 ml) in a stage carriage bus under the Crl.Rev.Pet.No.619 OF 2007

name and style "Sheraton Bus" bearing registration No.KRN

5866 in violation of the Abkari Act and Rules framed thereunder.

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

examined and marked Exts.P1 to P4 and MOs 1 to 3 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. When the accused was called upon to enter

on his defence, DWs1 and 2 were examined on his side.

4. Heard Sri.V.T.Madhavanunni, the learned counsel for

the revision petitioner and Sri.M.S.Breez, the learned Senior

Public Prosecutor for the State.

5. The learned counsel for the revision petitioner

submitted that the persecution mainly relied on Ext.P4

certificate of Chemical Analysis issued by the Chemical

Examiner. According to the learned counsel for the revision

petitioner, when the prosecution relied upon the report of the

chemical analysis in respect of the sample sent for analysis to

prove the offence alleged against the accused, it can succeed only Crl.Rev.Pet.No.619 OF 2007

if it is shown that the liquid which was examined by the chemical

examiner was the very same sample drawn from the liquid

seized. Elaborating on the submission, the learned counsel for

the revision petitioner submitted that the copy of the forwarding

note allegedly prepared by PW1 for sending the sample for

chemical analysis was not marked in evidence. It was further

submitted that the seizure mahazar was not produced to show

that the contraband was seized by PW1 as alleged by the

prosecution. In the above two legal grounds, the learned counsel

for the revision petitioner assailed the evidence let in by PW1, the

detecting officer in support of the prosecution case.

6. Per contra, the learned Senior Public Prosecutor

submitted that on 13.01.1997 at about 4.30 p.m, PW1, the Excise

Inspector seized the material objects from the custody of the

accused red handed and produced before the court without any

delay whatsoever. It was further submitted that concurrent

findings of conviction and sentence are sought to be assailed in

revision and unless the findings are perverse, it would not be

justified in exercising the powers under Section 401 of the Cr.P.C Crl.Rev.Pet.No.619 OF 2007

to upset the concurrent findings of the two courts below.

7. PW1 is the detecting officer. On 13.01.1997 at about

4.30 p.m., PW1, the Excise Inspector and party seized MOs1 to 3

from the custody of the accused while the accused was travelling

in a stage carriage bus bearing registration No.KRN 5866 plying

on Kannur-Kulingam route. PW2 is the driver of the bus. He is

an attestor to Ext.P1 mahazar prepared by PW1. He has turned

hostile to the prosecution. Ext.P2 is the search list. Ext.P1 and P2

were prepared on 13.01.1997. However, Ext.P1 and P2 were

produced before the court on 14.05.1997. The delay in furnishing

Ext.P1 and P2 before the trial court was not explained when PW1

and PW3 were examined before the trial court.

8. Ext.P4 certificate of chemical analysis issued by the

Joint Chemical Examiner to Government of Kerala would show

that two sealed bottles containing 375 ml and 180 ml

respectively of a amber colorued liquid alleged to be foreign

liquor involved in Crime No.2 of 1997 of Thaliparamba Excise

Range were received for chemical analysis. On analysis, the

chemical examiner reported that ethyl alcohol was detected in Crl.Rev.Pet.No.619 OF 2007

both samples. When the prosecution relies upon Ext.P4

Chemical Analysis Report to prove the offence under Section

55(a) of the Abkari Act against the accused, the prosecution is

obliged to show that the two bottles of liquid which were

examined by the chemical examiner were the very same samples

drawn from the contraband seized. Further, there was an

inordinate delay in producing the material objects before the

court. The material objects were produced before the court only

on 14.05.1997. The description of the properties given in Ext.P1

and P2 do not show that the bottles which contained the very

same sample of liquid were the very same samples taken from

the liquid contained in the contraband seized from the bus.

When the contraband was seized by the Abkari Officer, the

Abkari Officer was obliged to keep the contraband in safe

custody until it was produced before the court. When PWs 1 and

3 were examined before the trial court, no explanation was

offered by them to prove that the contraband seized by PW1 was

kept by PW1 safely until the material objects were produced

before court. In the absence of reliable evidence to prove the Crl.Rev.Pet.No.619 OF 2007

same, the accused is entitled to get the benefit of doubt. There is

yet another lacuna in the prosecution case. The copy of the

forwarding note allegedly prepared by PW1 for sending the

samples for chemical analysis 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.

The copy of the specimen impression of seal is not produced as

an exhibit in this case as well. In the absence of the forwarding

note marked in evidence, it is difficult to hold that the

prosecution has proved its case beyond reasonable doubt and

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

had reached the chemical examiner for analysis in a tamper

proof condition. Added to this, the delay in producing the

material objects before the court immediately after the search

and seizure has cut the root of the prosecution. Hence, the

accused is entitled to get the benefit of doubt.

9. Both the trial court and the appellate court

erroneously appreciated the evidence on record without

considering the above legal aspects in detail. Hence, the Crl.Rev.Pet.No.619 OF 2007

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 55(a) 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