Pennukutty vs State Of Kerala
2023 Latest Caselaw 11647 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945
                 CRL.REV.PET NO. 2182 OF 2010
           CRA 849/2006 OF SESSIONS COURT,KOZHIKODE
      SC 672/2004 OF ASSISTANT SESSIONS COURT, QUILANDY

REVISION PETITIONER/APPELLANT/ACCUSED:

 PENNUKUTTY, W/O.VISWAMBARAN,
 CHENKANIMMAL HOUSE, KUNNATHARA AMSOM
 DESOM, KOYILANDY TALUK.

 BY ADV SRI.SUNNY MATHEW


RESPONDENT/RESPONDENT/COMPLAINANT:

 STATE OF KERALA THROUGH THE EXCISE
 INSPECTOR, BALUSSERY EXCISE RANGE,
 KOZHIKODE DISTRICT, REPRESENTED BY
 THE PUBLIC PROSECUTOR, HIGH COURT OF
 KERALA, ERNAKULAM.

OTHER PRESENT:

SRI.RENJIT GEORGE, SENIOR PUBLIC
PROSECUTOR

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
16.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.R.P. 2182 of 2010              2


                              ORDER

This revision is at the instance of the accused in SC No.672 of

2004 on the file of Assistant Sessions Judge, Koyilandy, assailing

the judgment in Crl.Appeal No.849 of 2006 on the file of Sessions

Court, Kozhikode, which upheld her conviction and sentence under

Sections 8(1) and 8(2) of the Abkari Act.

2. The prosecution case is that, on 23.08.2002 at about

12.15 p.m, while PW4, preventive officer attached to Balussery

Excise Range, and party were on patrol duty, near Alinchuvadu bus

stop, they found the revision petitioner walking through the road

carrying a white can. She was intercepted and the contents of the

can was examined and it was found to be 2 litres of illicit arrack.

Since there were no woman officials in the excise team, she was

not arrested. The contraband was seized, sample was taken, and

after completing all legal formalities such as sampling, sealing etc,

records and the articles seized were produced before the Excise

Range Office, and from there, it was forwarded to the jurisdictional

Magistrate court. PW6 investigated the case and laid charge sheet

against the revision petitioner.

3. On appearance of the revision petitioner before the trial

court, charge was framed under Sections 8(1) and 8(2) of the

Abkari Act, read over and explained, to which she pleaded not

guilty and claimed to be tried.

4. PWs 1 to 6 were examined, Exts.P1 to P6 were marked

and M.O 1 was identified by the prosecution, to prove its case.

5. On closure of the prosecution evidence, the revision

petitioner was questioned under Section 313 Cr.P.C, and she denied

all the incriminating circumstances brought on record, but no

defence evidence was adduced.

6. On analysing the facts and evidence and on hearing the

rival contentions from either side, the trial court found the revision

petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act and

she was sentenced to undergo simple imprisonment for one year

and fine of Rs.1 lakh with a default sentence of simple

imprisonment for a further period of three months.

7. Aggrieved by the conviction and sentence, the revision

petitioner preferred Crl.Appeal No.849 of 2006, and the appellate

court dismissed the appeal upholding her conviction and sentence,

against which she has preferred this revision petition.

8. Now this Court is called upon to verify the legality,

propriety and correctness of the judgments impugned.

9. Heard learned counsel for the revision petitioner and

learned Public Prosecutor.

10. The PW4-the detecting officer, and PW1-Excise Guard who

was in the patrolling team, deposed the case in tune with the

prosecution. PWs 2 and 3, the independent witnesses, turned

hostile to the prosecution.

11. Learned counsel for the revision petitioner would argue

that, though PWs 1 and 4 supported the prosecution case, the trial

itself was vitiated due to defects, which were sufficient to shake

the prosecution case as such.

12. The first ground taken up by the revision petitioner is

that, nothing was recovered from the revision petitioner, and since

there was no arrest at the scene of occurrence, the prosecution

utterly failed to prove the nexus between the revision petitioner

and the contraband seized. If the prosecution has got a case that,

the revision petitioner was found carrying a can containing 2 litres

of arrack, they could have made arrangements to arrest her, at the

spot itself. The reason stated in Ext.P1 seizure mahazar that, due

to absence of woman excise officials in the patrolling team, she

was not arrested, is not a reasonable or satisfactory explanation,

and it is sufficient to cause reasonable doubt regarding the seizure

of the contraband from the revision petitioner, that too from a

public place. The revision petitioner is entitled to get the benefit of

that doubt.

13. Learned counsel for the revision petitioner pointed out

that, though the alleged seizure was on 23.08.2002, Ext.P4 thondy

list shows that the seized articles reached the court only on

26.08.2002 with a delay of three days. The prosecution has not

offered any explanation for the delay of three days in reaching the

contraband and its sample before the court. Moreover, Ext.P6

chemical analysis report shows that, the sample bottle was

forwarded from Judicial First Class Magistrate Court, Koyilandy as

per reference letter dated 24.08.2002, but the sample reached the

chemical examiner's lab on 04.09.2002, after a delay of about 12

days. The prosecution has not offered any explanation for the

delay of 12 days in reaching the sample before the chemical

examiner's lab, after forwarding it from the court. The prosecution

was bound to prove that the sample which was taken from the

contraband at the place of occurrence was the sample which

reached the court, and later the chemical examiner's lab. When

there is inordinate delay in producing the sample before the court,

and there is unexplained delay in reaching the sample sent from

court to reach the chemical examiner's lab, it casts serious doubt

regarding the genuineness of the sample which was analysed by

the lab.

14. In Krishnadas v. State of Kerala [2019 KHC 191],

this Court had occasion to consider the impact of delay in reaching

the sample before the laboratory, and it was held that, when there

is no explanation for the delay caused, it is a suspicious

circumstance, and the benefit of that suspicion must go to the

accused.

15. In the case on hand, there was delay in conducting

investigation and filing the final report. Though the occurrence

was on 23.08.2002, the witnesses were seen questioned only on

28.01.2004. The final report was submitted before court on

31.01.2004. As per Section 50 of the Abkari Act, every

investigation into the offence under the Act shall be completed

without unnecessary delay.

16. In Moothedath Sivadasan v. State of Kerala [2021

(1) KLT 744], this Court reiterated the necessity to complete the

investigation in abkari cases without delay.

17. In Ext.P1 seizure mahazar, there is specimen impression

of the sample seal. But, the nature of that seal is not mentioned in

the mahazar and according to the revision petitioner, that was also

necessary to prove the genuineness of the sample and the

transparency of the procedure. Admittedly, in Ext.P1 seizure

mahazar, the nature of the specimen impression of the seal is not

made mention.

18. Though Ext.P6 chemical analysis report shows that the

sample analysed contain 20.41% by volume of ethyl alcohol, the

prosecution failed to establish the link evidence to show that, the

sample which was recovered from the contraband allegedly seized

from the revision petitioner, was the sample analysed by the

chemical examiner. The reasons pointed out by the learned

counsel for the revision petitioner are sufficient to doubt the

genuineness of the prosecution case, and the revision petitioner is

entitled to get the benefit of that doubt. So, the judgments of the

trial court as well as the appellate court convicting and sentencing

the revision petitioner under Sections 8(1) and 8(2) of the Abkari

Act, are liable to be set aside.

In the result, the impugned judgments of conviction and

sentence are set aside. The revision petitioner is found not guilty

of the offences alleged and she is acquitted under Section 235(1)

of Cr.P.C. Her bail bond is cancelled and she is set at liberty

forthwith.

The revision petition stands allowed accordingly.

Sd/-

SOPHY THOMAS JUDGE

smp