Kerala High Court
Rajan vs The State Of Kerala on 16 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1609/2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
CRL.REV.PET NO. 1609 OF 2006
AGAINST THE JUDGMENT DATED IN Crl.A NO.321 OF 2004 OF
ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) I,
PATHANAMTHITTA ARISING OUT OF THE JUDGMENT DATED 27.9.2004
IN CC NO.527 OF 1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,
ADOOR
REVISION PETITIONER/APPELLANT/ACCUSED:
RAJAN@RAJU, S/O SUKUMARAN PLAKKUZHI VEEDU, ERATHU
MURI, ERATHU VILLAGE,, ADOOR TALUK, PATHANAMTHITTA
DISTRICT.
BY ADVS.SRI.C.B.SREEKUMAR
SHRI.K.S.SIVA KUMAR
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
REP. BY EXCISE INSPECTOR, ADOOR EXCISE RANGE,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
SRI.SANGEETHA RAJ.N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.1609/2006
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ORDER
This criminal revision petition has been filed challenging
the judgment in Crl.A.No.321/2004 dated 05.04.2006 on the files
of the Additional District and Sessions Court, (Adhoc) Court No-I
Pathanamthitta (for short "the appellate court") confirming the
judgment in C.C.No.527/1998 dated 27.9.2004 on the files of the
Judicial First Class Magistrate Court, Adoor (for short "the trial
court").
2. The prosecution case in short is that on
16.5.1997 at 1.20 pm, the petitioner along with other accused
were found in possession of 90 litres of illicit arrack in small
polythene sachets in contravention of the offence punishable
under Section 55(a) of the Abkari Act.
3. On receipt of summons, the petitioner appeared
at the trial court. After hearing both sides, charge was framed
under Section 55(a) of the Abkari Act. The charge was read over
and explained to him and he pleaded not guilty. The prosecution
examined PW1 to PW5 and marked Exts.P1 to P4. MO1 to MO4
were identified. On the side of the defence, none was examined.
Considering the evidence on record, the trial court found the
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petitioner guilty under Section 58 of the Abkari Act and convicted
him for the said offence. He was sentenced to undergo rigorous
imprisonment for six months and to pay a fine of ₹25,000/-(Rupees
twenty five thousand only), in default to suffer simple
imprisonment for three months. The appellate court in appeal,
confirmed the finding of the trial court and dismissed the appeal.
The conviction and sentence passed by both the trial court as well
as the appellate court are under challenge in this revision petition.
4. I have heard both sides.
5. The learned counsel appearing for the revision
petitioner assailed the conviction and sentence passed by the trial
court as well as the appellate court on two grounds:
(1) The forwarding note is not produced. (2) There is delay in
producing the contraband article before court.
6. The first contention canvassed by the learned
counsel for the revision petitioner is regarding the non production
of the forwarding note. The learned counsel submitted that mere
production of the laboratory report that the sample tested was
contraband substance is not sufficient unless and until the
forwarding note also is produced. This Court in Gireesh @ Manoj
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v. State of Kerala[2019 KHC 655] has held that in the absence
of the forwarding note marked in evidence, it cannot be found that
the prosecution has proved beyond reasonable doubt that the very
same sample taken at the spot of occurrence had reached the
chemical examiner for analysis in a tamper proof condition. The
forwarding note is the link evidence to show that it was the same
sample which was drawn from the contraband seized from the
accused had eventually reached the chemical analysis laboratory
by change of hands in a tamper proof condition. Hence, I am of
the view that non production of the forwarding note is fatal to the
prosecution.
7. The next contention put forward by the learned
counsel for the revision petitioner is about the delay in producing
the samples of contraband substance at the trial court. It is
settled that the unexplained delay in producing the contraband
substance and the samples drawn from it at the court is fatal to
the prosecution case. The Apex Court in State of Uttar Pradesh
v. Hansraj @ Hansu [(2018) 18 SCC 355] has held that when
there is delay in producing samples of contraband substance in
Court and when evidence is that they were kept in police station,
prosecution has to adduce evidence to show as to how and in
what condition the same were preserved at the police station. A
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Division Bench of this Court in Ravi v. State of Kerala [2011 (3)
KLT 353] has held that even though law does not mandate
production of seized articles forthwith before the Court and it
enjoins only reporting the seizure forthwith to the Court, the
production of the seized articles shall take place without
unnecessary delay and if there is delay, it should be satisfactorily
explained. A Single Bench of this Court in Ramankutty v. Excise
Inspector [2013 (3) KHC 308] has held that in the absence of
proper explanation for the delay, even one day's delay is fatal.
Similar view has been expressed by another Single Bench of this
Court in Ravi v. State [2018 (4) KLT OnLine 2056]. Relying on
the Division Bench's decision in Ravi (supra), recently, another
Single Bench of this Court in Anilkumar v. State of Kerala
(2020 (4) KLT 34) has also took the view that the delay in
producing the samples of contraband substance in Court in the
absence of satisfactory explanation is fatal.
8. Coming to the facts of the case, the contraband
was on seized on 16.5.1997. But the same was received and
verified at the trial court only on 22.5.1997. The said delay is not
explained. There is also no explanation as to where and in what
condition the seized contraband substance and the samples were
kept till it is received at the court. When there is delay, however
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short it may be, in producing the seized contraband substance and
the sample drawn from it at the Court, the prosecution has not
only to explain the delay satisfactorily, but also to prove how and
in what condition the same were preserved during the
interregnum period. The prosecution failed to satisfy this twin
conditions.
9. The aforesaid vital aspects were not taken into
consideration by the trial court as well as the appellate court while
appreciating the prosecution case. For the reasons stated above, I
am of the view that the conviction and sentence passed by the
trial court as well as the appellate court suffer from illegality and it
cannot be sustained.
In the result, the criminal revision petition stands
allowed. The conviction and sentence passed by the trial court as
well as the appellate court vide the impugned judgments are set
aside. The revision petitioner is found not guilty of the offences
charged against him and accordingly he is acquitted. His bail bond
is cancelled.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
