Thankappan vs State Of Kerala And Another
2021 Latest Caselaw 9 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                 Crl.Rev.Pet.No.1417 OF 2010

CRA 635/2008 OF ADDITIONAL SESSIONS COURT-I, MAVELIKKARA

  SC 379/2005 OF ASSISTANT SESSIONS COURT, MAVELIKKARA


REVISION PETITIONER/S:

           THANKAPPAN, ALICKAL PADEETTATHIL,
           PATTOOR MURI, NOORANADU VILLAGE, MAVELIKKARA,,
           ALAPPUZHA.

           BY ADVS.
           SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
           SRI.A.R.DILEEP

RESPONDENT/S:

     1     STATE OF KERALA AND ANOTHER
           REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT
           OF KERALA, ERNAKULAM.

     2     THE EXCISE INSPECTOR
           MAVELIKKARA EXCISE RANGE, MAVELIKKARA.


OTHER PRESENT:

           SR.PP.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04.01.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 Crl.Rev.Pet.No.1417 OF 2010

                                    ..2..




                              O R D E R

The revision petitioner was the accused in SC

No. 379 of 2005 on the file of the Assistant

Sessions Court, Mavelikkara and the appellant

in Crl.Appeal No. 635 of 2008 on the file of

the Additional Sessions Court-I, Mavelikkara.

The offence alleged against the accused is

punishable under Section 8(2) r/w Section 8(1)

of the Kerala Abkari Act (hereinafter referred

to as, "the Act").

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

06.01.2003 at 5.30 pm, while PW5 along with the

excise party was on patrol duty along the

panchayat road leading to Budha Engineering

College from Kuthirakettumthadam junction on

the southern side of Sree Bhadra Devi Temple,

the accused was found possessing and

transporting one litre of arrack in MO1 plastic

can having a capacity of two litres. Crl.Rev.Pet.No.1417 OF 2010

..3..

Accordingly, the accused was arrested in

accordance with law and after conducting

investigation, final report was filed under

Section 8(1) and (2) of the Act.

3. On committal, after having heard both sides,

the trial court framed charge against the

accused for the offence punishable under

Section 8(2) r/w Section 8(1) of the Act. The

charge was read over, to which the accused

pleaded not guilty.

4. During the trial, PWs 1 to 5 were examined and

marked Exts.P1 to P4 on prosecution side. On

closing the evidence of the prosecution, the

accused was questioned under Section 313(1)(b)

of the Code of Criminal Procedure. He denied

all the incriminating circumstances appearing

in the evidence against him. When he was called

upon to enter on his defence, DW1 was examined

on his side.

5. On appreciation of the evidence, by its

judgment dated 20.12.2008, the trial court Crl.Rev.Pet.No.1417 OF 2010

..4..

convicted and sentenced the accused to undergo

rigorous imprisonment for one year and to pay a

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

fine to undergo rigorous imprisonment for three

months more for the offence punishable under

Section 8(2) r/w Section 8(1) of the Act.

6. Challenging the conviction and sentence imposed

by the trial court, the accused preferred Crl.

Appeal No. 635 of 2008 and the appellate court,

by its judgment dated 16.02.2010, dismissed the

appeal confirming the judgment of conviction

and sentence imposed by the trial court.

Feeling aggrieved, the accused is before this

Court in revision.

7. Heard Sri.George Varghese Perumpallikuttiyil,

the learned counsel for the revision

petitioner; and Sri.M.S.Breez, the learned

Senior Public Prosecutor for the

respondent-State.

8. The learned counsel for the revision petitioner

contended that both the trial court and the Crl.Rev.Pet.No.1417 OF 2010

..5..

appellate court, without cross checking the

reasoning with the evidence on record,

convicted and sentenced the accused for the

offence punishable under Section 8(2) of the

Act. The learned counsel further submitted that

the occurrence in this case was on 06.01.2003

at about 5.30 pm and the contraband was seized

by PW5 as per Ext.P1 seizure mahazar.

9. It is a fact that the contraband involved in

this case is one litre of illicit arrack.

Ext.P1 seizure mahazar was prepared by PW1 on

06.01.2003. It was produced before the court on

07.01.2003 along with Ext.P3 crime and

occurrence registered against the accused.

However, Ext.P4 property list was produced

before the court on 10.01.2003. No reasonable

explanation was offered by PW5 for the delay in

furnishing the material object before the

court. This would indicate that PW5 was in

possession of MO1 containing contraband liquor

from 06.01.2003 to 10.01.2003 though other Crl.Rev.Pet.No.1417 OF 2010

..6..

documents pertaining to the occurrence and the

accused were produced before the learned

Magistrate on 07.01.2003. The delay in

producing the material objects before the court

immediately after the occurrence has not been

explained by the prosecution. Thus, the seized

contraband was not produced before court as

provided under Section 102(1) of the Cr.P.C.

and Section 36 of the Act.

10.Ext.P2 Certificate of Chemical Analysis would

show that with reference to letter No.TR

10/2003 dated 13.01.2003 received from the

Judicial First Class Magistrate, Mavelikkara,

the Chemical Examiner attached to the

Government examined one sealed bottle

containing 200 ml of contraband involved in

Crime No. 2 of 2003 of Mavelikkara Excise Range

and reported that the sample of liquid

contained 35.78% by volume of ethyl alcohol.

According to the Chemical Examiner, the seal on

the bottle was intact and found tallied with Crl.Rev.Pet.No.1417 OF 2010

..7..

the sample provided.

11.On going through Ext.P1 seizure mahazar, no

sample seal is seen affixed. Similarly, the

copy of the forwarding note allegedly submitted

by PW5 before the court is not seen marked in

this case. There is nothing on record to show

that the sample seal on the bottle allegedly

examined by the Chemical Examiner is found

tallied with the sample seal provided. In fact,

the specimen impression of sample seal has not

been produced in this case.

12.Relying on the evidence of PW5, the detecting

officer, and PW1, who accompanied PW5 on the

date of occurrence, both the trial court and

the appellate court wrongly convicted and

sentenced the accused without considering the

above material aspects involved in this case.

Thus, the judgment of the appellate court

confirming the conviction and sentence imposed

by the trial court is against the mandate of

law. The reasonings and findings recorded by Crl.Rev.Pet.No.1417 OF 2010

..8..

the trial court and the appellate court are not

consistent with the materials on record.

In the result, the criminal revision petition

is allowed. The revision petitioner/accused is

found not guilty of the offence punishable

under Section 8(2) r/w Section 8(1) of the Act

and he is acquitted thereunder. Cancelling his

bail bond, this Court directs that he be set at

liberty. If any amount is deposited pursuant to

an interim order passed by this Court, the same

shall be released to the revision

petitioner/accused in accordance with law.

Pending applications, if any, stand disposed

of.

Sd/-

N.ANIL KUMAR

JUDGE Bka/05.01.2021