Kerala High Court
Sundaran.G vs State Of Kerala on 11 February, 2025
2025:KER:10358
Crl.R.P.No.431/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL.REV.PET NO. 431 OF 2013
AGAINST THE JUDGMENT DATED 23.06.2012 IN CRL.A NO.278 OF 2007
OF SESSIONS COURT,THALASSERY ARISING OUT OF THE JUDGMENT DATED
31.05.2007 IN SC NO.322 OF 2002 OF ASSISTANT SESSIONS COURT,
PAYYANNUR
PETITIONER/APPELLANT/ACCUSED:
SUNDARAN.G
MUNDAVALAPPIL HOUSE,
ARATHI, EZHILODE PO,
PILATHARA, KANNUR DISTRICT.
BY ADV SRI.KALEESWARAM RAJ
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED PUBLIC PROSECUTOR,
HIGH COURT OF KERALA ERNAKULAM.
PIN - 682031.
SRI. SANAL P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07.02.2025, THE COURT ON 11.02.2025 THE SAME DAY PASSED THE
FOLLOWING:
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Crl.R.P.No.431/2013
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ORDER
The concurrent verdicts of the Assistant Sessions Court,
Payyannur and the Sessions Court, Thalassery in S.C.No.322/2002 and
Crl.A.No.278/2007 respectively, convicting and sentencing the petitioner
for the offence under Section 55(a) of the Abkari Act, are under
challenge in this revision. The courts below awarded a sentence of
rigorous imprisonment for one year and fine Rs.1,00,000/- with a
default clause of simple imprisonment for six months for the aforesaid
offence found to have been committed by the petitioner.
2. The prosecution case is that on 22.08.2001, at about 08:30
p.m, the accused was found to have been in possession of five litres of
arrack in a plastic can by the side of a public road at the place called
Cheruthazham. The Sub Inspector of Police, Payangady (PW1) and his
team, during the course of their patrol duty, are said to have detected
the offence, arrested the accused and seized the contraband items from
him. Sample of the contraband arrack held by the accused is said to
have been collected on the spot. The accused was produced before the
Magistrate concerned and remanded to judicial custody. The
investigation in this case is said to have been conducted by PW4, the
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Additional Sub Inspector of Police, Taliparamba, who laid the final
report before the Jurisdictional Magistrate.
3. In the trial conducted before the Assistant Sessions Court,
Payyannur, four witnesses were examined from the part of the
prosecution as PW1 to PW4 and eight documents were marked as
Exts.P1 to P8. Two material objects were identified as MO1 and MO2.
The accused did not prefer to adduce any evidence. The learned
Assistant Sessions Judge, after an evaluation of the aforesaid evidence,
found that the prosecution has succeeded in establishing that the
accused committed offence under Section 55(a) of the Abkari Act.
Though the matter was taken up in appeal before the Sessions Court,
Thalassery, the learned Sessions Judge, Thalassery, after a
re-appreciation of the evidence, found that there is no reason to
interfere with the conviction and sentence awarded by the Trial Court.
Aggrieved by the aforesaid judgment dated 23.06.2012 in
Crl.A.No.278/2007, the petitioner is here with this revision.
4. Heard the learned counsel for the petitioner and the learned
Public Prosecutor representing the State of Kerala.
5. The main argument advanced by the learned counsel for
the petitioner is that the inordinate delay of two days in the production
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of the contraband items before the Magistrate, vitiates the credibility of
the prosecution story, and hence the petitioner is entitled for an
acquittal. It is also pointed out that there was a further delay of about
18 days in forwarding the sample bottle to the Chemical Examiner's
Laboratory which would also cast suspicion on the genuineness of the
prosecution case. Another contention raised by the learned counsel for
the petitioner is that as per the statement of the Attestor to Ext.P2
seizure mahazar as PW3, he had signed only once, as per the request
of the police, and hence it has to be taken that the signatures affixed in
the label attached to the sample bottle and MO1 and MO2 were forged
signatures. Upon the aforesaid grounds, the learned counsel for the
petitioner seeks the acquittal of the petitioner.
6. As rightly pointed out by the learned counsel for the
petitioner, there is an unexplained delay of about two days in the
production of the sample bottle and other contraband items before the
Magistrate concerned. This aspect is revealed from the property list
marked as Ext.P4. There is no explanation offered by the prosecution
for the delay which occasioned in this regard.
7. Another important aspect which deserves consideration in
this case is that the prosecution failed to show that the sample was
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collected in a foolproof manner, and it was transmitted to the Chemical
Examiner's Laboratory in a tamper proof condition. Admittedly, PW1
and his team had collected only one sample of the contraband arrack in
a bottle of 375 ml capacity. Neither the seizure mahazar marked as
Ext.P2, nor the evidence tendered by PW1 would reveal the particulars
of the aforesaid bottle as to whether it was clean and moisture free.
Apart from a casual statement in Ext.P2 that the sample bottle was
sealed with SHO seal, the specifications of the seal are not described in
the seizure mahazar. True that a seal impression is seen affixed in
Ext.P2, but it is not possible to discern anything other than the blue ink
spread over a circular portion, about the inscriptions in the said seal.
There is absolutely nothing in evidence to show that when the above
sample bottle was received at the office of the Judicial First Class
Magistrate, Payyannur, the staff concerned had verified and compared
the seal affixed in the sample bottle with the specimen seal impression
supplied by the investigating agency. It is also pertinent to note that
the seal impression seen affixed in Ext.P5 forwarding note is also not
discernible. Apart from a blurred pattern of blue ink in round shape,
nothing could be understood from the above seal impression in Ext.P5.
That apart, the requisition letter marked as Ext.P6 which the learned
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Magistrate has sent to the Chemical Examiner's Laboratory, contains
another seal impression made in wax. The prosecution has failed to
make it clear as to whether the seal impression affixed in wax found in
Ext.P6 requisition letter was the very same seal impression which PW1
is said to have affixed in the sample bottle at the time of detection of
the offence. The non-examination of the staff concerned of the office
of the Magistrate who despatched the sample bottle to the Chemical
Examiner's Laboratory assumes significance in this regard. In the
absence of clarity on the above aspects relating to the sealing of the
contraband items, it is not possible to say that the sample bottle was
sent to the Chemical Examiner's Laboratory in a tamper proof condition.
Nor could it be said that the sample was collected in a foolproof
manner and sent to the office of the Magistrate without leaving chances
of tampering. The unexplained retention of the sample bottle for about
two days by the investigating agency further adds suspicion about the
fairness and credibility of the process followed in the collection and
transmission of the sample bottle to the authorities concerned. In
addition to that, it could be seen from the certificate of chemical
analysis marked as Ext P7 that there was a delay of more than 1½
years in getting the sample analysed and the report sent to the
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Jurisdictional Court. Neither the Trial Court nor the Appellate Court had
considered the procedural flaws in the above regard which had vitiated
the prosecution case. Therefore, the conviction and sentence awarded
by the Courts below, are liable to be set aside for the aforesaid reason.
In the result, the petition stands allowed. The judgment
rendered by the Sessions Court, Thalassery, in Crl.A.No.278/2007
confirming the conviction and sentence awarded by the Assistant
Sessions Court, Payyannur in S.C.No.322/2002, is hereby set aside.
The revision petitioner/accused is acquitted of the offence under
Section 55(a) of the Abkari Act charged against him.
(sd/-)
G. GIRISH, JUDGE
DST
