Kerala High Court
Molly vs State Of Kerala on 7 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
CRL.REV.PET NO. 1451 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 28.01.2013 IN Crl.A
NO.188 OF 2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-
II,THALASSERY ARISING OUT OF THE ORDER/JUDGMENT DATED
24.03.2007 IN SC NO.624 OF 2002 OF ASSISTANT SESSIONS
COURT/SUB COURT/COMMERCIAL COURT, PAYYANNUR
REVISION PETITIONER/WIFE OF THE APPELLANT/ ACCUSED:
MOLLY
AGED 45 YEARS
W/O LATE JOHN MELETH, POTHUKUNDU, NADUVIL AMSOM
DESOM, TALIPARAMBU TALUK, KANOOR DISTRICT.
BY ADVS.
SRI.S.RENJITH
SRI.JACOB E SIMON
RESPONDENTS/RESPONDENTS/ RESPONDENTS:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, \HIGH
COURT OF KERALA, ERNAKULAM - 682031.
SMT. HELAN MARIYA JOHNSON
SMT MAYA M N, PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 07.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 1451 OF 2014 2
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MURALEE KRISHNA S., J.
--------------------------------
Crl.R.P. No.1451 of 2014
--------------------------------
Dated this the 07th day of March, 2025
ORDER
This revision petition is filed under Section 397 r/w
401 of the Code of Criminal Procedure (in short, 'CrPC') by the
wife of the accused in S.C. No. 624 of 2002 on the file of the
Court of Assistant Sessions Judge, Payyannur. As the judgment
dated 24.03.2007 passed by the learned Assistant Sessions
Judge, the accused was convicted for the offence under Section
58 of the Abkari Act and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs. 1,00,000/-
and, in default of payment of the fine, to undergo simple
imprisonment for six months.
2. The appeal filed by the accused was dismissed
by the Additional Sessions Judge, Ad-hoc-II, Thalassery, as per
the judgment dated 28.01.2013 in Crl. Appeal No. 188 of 2007.
3. The prosecution case is that on 29.08.1998,
at about 06:00 pm, the accused was found by the side of the
road near Naduvil Krishi Bhavan at Naduvil Amsom of
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Taliparambu Taluk by holding a can containing 3 litres of illicit
arrack. PW1, the preventive officer of the Excise Range Office,
Alakkode, and party detected the offence and arrested the
accused after seizing the contraband article. Ext. P3, Mahazar,
was prepared from the spot, and the accused was brought to
the Range Office. He was subsequently produced before the
court concerned and remanded in judicial custody. On
completion of the investigation, PW5, the Excise Inspector, filed
the final report before the jurisdictional court. After taking
cognizance and complying with Section 207 of the CrPC, the
case was committed to the Sessions Division under Section 209
of the CrPC by the learned Magistrate. After numbering the
case as S.C. No. 624 of 2002, it was made over to the court of
the Assistant Sessions Judge, Payyannur, for trial and disposal.
4. From the side of the prosecution, PW1 to PW5
were examined, and Exts. P1 to P8 documents were marked.
MO1, the material object, was identified at the time of
evidence. On completion of the prosecution evidence, the
accused was examined under Section 313 of the CrPC. He
denied all the incriminating circumstances brought out against
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him. When the case was posted for defense evidence, DW1 and
DW2 were examined on the side of the accused. After hearing
both sides, the learned Assistant Sessions Judge found the
accused guilty and sentenced him as said above.
5. After the disposal of the appeal, the accused
expired, and his wife filed the above revision petition before
this Court in her capacity as the near relative.
6. On 14.08.2014, when this matter came up for
consideration this Court condoned the delay of 99 days in filing
the revision petition. On 19.08.2014, as per the order in
Crl.M.A. No.5184 of 2014, this Court suspended the fine
portion of the sentence on execution of a bond with two solvent
sureties for Rs.1,000,00/- each to the satisfaction of the trial
court by the revision petitioner. On 04.03.2016, when this case
came up for consideration, this court passed the following order
in Crl.M.A.No.1297 of 2016.
'All the proceedings initiated by the trial
court/sessions court for realisation of fine amount
imposed as part of the sentence in S.C.No.624/2002 on
the file of the Assistant Sessions Judge, Payyannur and
Crl.Appeal No.188/2007 on the file of the Additional
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Sessions Judge, Adhoc II, Thalassery shall be called back
on condition that the petitioner herein deposits a sum of
Rs.1,00,000/- (Rupees one lakh only) before the trial
court i.e. the earlier order of suspension of fine is
modified. The direction to execute a bond for
Rs.1,00,000/- by the petitioner is modified as to deposit
a sum of Rs.1,00,000/- (Rupees one lakh only) before
the executing court. On deposit of the said amount,
there will be no lien by the Government on the property
of the deceased, John Meleth. While passing this order,
this court has considered the ambit of Section 421 of
Cr.P.C. as well as Section 70 of IPC. It is further made
clear that the right of petitioner on the property of the
deceased is not considered by this Court.'
7. Heard the learned counsel for the revision
petitioner and the learned Public Prosecutor.
8. Adv. Helen Maria Johnson, attached to the
office of the learned counsel for the revision petitioner argued
that there is no allegation or averments in the final report, as
well as in the prosecution evidence, that the accused had
knowledge that the liquor possessed by him was illicit liquor.
The learned counsel vehemently argued that Ext. P3 Seizure
Mahazar, allegedly prepared by PW1 at the time of the
detection of the offence, is only a carbon copy. No explanation
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was offered by the prosecution as to what happened to the
original of that document. In such circumstances, Ext. P3
cannot be relied upon, even as secondary evidence is the
argument of the learned counsel. It is also pointed out by the
learned counsel for the petitioner that even if Ext. P3 is taken
as proved in evidence, it does not contain the specimen
impression of the detecting officer and hence, in view of the
judgment of this Court in Anil Varghese v. State of Kerala
[2024 (6) KHC 490] the accused is entitled to be acquitted.
9. On the other hand, the learned Public
Prosecutor argued that even if there is no specific allegation of
knowledge regarding the fact that the contraband article is
illicit liquor, under Section 64 of the Abkari Act, such a
presumption can be drawn by the Court if other conditions
regarding seizure are proved in evidence. According to the
learned Public Prosecutor, the trial court, as well as the
appellate court, correctly analyzed the evidence, and no
interference is needed by this Court by exercising its revisional
jurisdiction.
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10. The accused in this case is no more.
Therefore, the substantive portion of the punishment is abated.
But it is trite that the fine portion of the sentence will not abate
by the death of the accused. In such circumstances, the near
relative of the accused is entitled to plead that the accused is
entitled to be acquitted. Noting that position of law at the time
of admission itself this Court granted permission to the revision
petitioner to proceed with this revision petition.
11. It is trite that a Court exercising revisional
jurisdiction will interfere with orders or judgments of the courts
below only if those orders and judgments are suffering from
incorrectness, illegality or impropriety. Unless the judgment
passed by the learned Magistrate or by the Appellate Court is
perverse or the view taken by the Court is unreasonable or
there is non-consideration of any relevant material, or there is
palpable misreading of records, the revisional Court will not be
justified in interfering with the judgment. The revisional Court
cannot act like an Appellate Court.
12. In State of Kerala v. Jathadevan Namboodiri
[AIR 1999 SC 981], the Hon'ble Supreme Court held thus:
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"In its revisional jurisdiction, the High Court can call for
and examine the record of any proceedings for the
purpose of satisfying itself as to the correctness, legality
or propriety of any finding, sentence or order. In other
words, the jurisdiction is one of Supervisory Jurisdiction
exercised by the High Court for correcting miscarriage of
justice. But the said revisional power cannot be equated
with the power of an Appellate Court nor can it be treated
even as a second Appellate Jurisdiction. Ordinarily,
therefore, it would not be appropriate for the High Court
to reappreciate the evidence and come to its own
conclusion on the same when the evidence has already
been appreciated by the Magistrate as well as the
Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice."
(Emphasis supplied)
13. In Munna Devi vs State of Rajasthan [AIR
2002 SC 107] the Apex Court in paragraph 3 held thus:
"3. We find substance in the submission made on behalf
of the appellant. The revision power under the code of
Criminal procedure cannot be exercised in a routine and
casual manner. While exercising such powers the High
Court has no authority to appreciate the evidence in the
manner as the trial and the appellate courts are required
to do. Revisional powers could be exercised only when it
is shown that there is a legal bar against the continuance
of the criminal proceedings or the framing of charge or
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the facts as stated in the First Information Report even if
they are taken at the face value and accepted in their
entirety do not constitute the offence for which the
accused has been charged."
14. In Sanjaysinh Ramrao Chavan v. Dattatray
Gulabrao Phalke & Others [2015 (3) SCC 123], it has been
held by the Hon'ble Supreme Court thus:
"Revisional power of the court under S.397 to 401 of
Cr.PC is not to be equated with that of an appeal. Unless
the finding of the court, whose decision is sought to be
revised, is shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or where the
decision is based on no material or where the material
facts are wholly ignored or where the judicial discretion
is exercised arbitrarily or capriciously, the courts may
not interfere with decision in exercise of their revisional
jurisdiction".
15. Now the question is whether the judgments
impugned suffers from any patent illegality which warrants
interference of this court by exercising revisional jurisdiction.
While considering the argument of the learned counsel for the
petitioner regarding the knowledge of the accused about the
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nature of the contraband is concerned, the said argument
appears as not quite appreciable. But while coming to the
findings of the trial court, as well as the appellate court about
the acceptability of Ext. P3 mahazar in evidence, I find force in
the submission of the learned counsel for the petitioner that it
is a document un acceptable in evidence. From the perusal of
Ext. P3 mahazar, it is evident that it is only a carbon copy.
Nowhere in the evidence adduced before the trial court, it was
explained by the prosecution as to what happened to the
original of Ext. P3. No evidence was adduced before the trial
court to accept Ext. P3 as secondary evidence, by complying
the conditions stipulated under Section 65 of the Indian
Evidence Act, to adduce secondary evidence pertaining to a
document. Even though the said document was not objected
to at the time of marking, it was the duty of the court to
examine the evidentiary value of that document, while deciding
this case.
16. Another serious defect noted in the detection
of the offence is that in Ext. P3 seizure mahazar, there is no
specimen seal of the detecting officer. This Court in Shibu
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Jacob v. Sub Inspector of Police [2023 (7) KHC 394] held
thus:
"Yet another contention raised by the revision petitioners
is that in Ext.P1, no specimen seal is seen affixed. It is
also contended that the forwarding note is not seen
marked. The purpose of putting the specimen seal
impression in the seizure mahazar is to give an
opportunity to the court to verify the same and satisfy
that the seized substances reach the court without any
tampering. The specimen seal is provided in the
forwarding note so as to enable the chemical examiner
to compare it with the seal on the sample and come to
the conclusion that it reached the laboratory without any
tampering. In this case, no specimen seal is seen affixed
in the seizure mahazar and the forwarding note itself is
not produced and marked. This court in Vijayan v State
of Kerala, (2021 (5) KLT 321), has enumerated the steps
to be followed by the officer collecting the sample, the
Thondy Clerk who is authorized to receive the thondy
and the measures to be ensured by the chemical
examiner and held that the specimen seal shall be
affixed on the mahazar, sample bottle, bottle containing
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the remaining part of the contraband and the forwarding
note and further held that while collecting sample the
officer shall describe the nature of the specimen seal in
the mahazar. In the present case, the forwarding note
by which the sample of the contraband was sent for
chemical analysis is also not produced and marked. In
Nadarajan v. State of Kerala, [2020 (3) KLT OnLine
1030], it is held that when the specimen seal is not
affixed on the seizure mahazar and in the forwarding
note (in the present case no forwarding note is produced
and marked), there is no assurance that the very same
sample which was allegedly drawn at the spot of
occurrence was produced before the court and sent for
analysis as per the forwarding note and it has reached
the laboratory in a tamper proof condition and tested
there. A similar view was taken by this court in Gopalan
v. State of Kerala, [2016 (3) KLT SN 16], Prakasan v.
State of Kerala [2016 (1) KLT SN 96 (C.No.96)], Joseph
v State of Kerala [2009 (4) KHC 537]. Ajayakumar v.
State of Kerala [2021 KHC 3872], Gireesh @ Manoj v.
State of Kerala [2019 KHC 655], Faijas v. State of Kerala
(2020 KHC 5259) and Ramachandran v. State of Kerala,
(2021 (1) KLT 793]. This court in Moothedath Sivadasan
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v. State of Kerala, [2021 (1) KLT 744] has held that
since no specimen impression of seal is seen affixed in
the seizure mahazar it is very difficult to hold that the
sample of the contraband allegedly seized from the
accused has in fact reached the Chemical Examiner for
analysis. This court in Sasidharan v. State of Kerala,
[2007 (1) KLT 720] has considered and emphasized the
legal obligation cast on the prosecution to prove that the
sample allegedly seized from the accused eventually
reached the hand of the chemical examiner in a tamper-
proof condition. Relying on the judgment of the Apex
Court in State of Rajasthan v. Daulat Ram, [AIR 1980 SC
1314], this court in Sasidharn's case supra held that
when the sample changed several hands before reaching
the chemical examiner, the prosecution has to
necessarily examine the various officials who handled
the sample to prove that while in their custody, the seal
of the sample has not been tampered with. The Apex
Court in Vijay Pandey v. State of U.P., (AIR 2019 SC
3569] has held that mere production of a laboratory
report that the sample tested was the contraband
substance cannot be conclusive proof by itself and that
the sample seized and one tested are to be correlated. A
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similar view was taken by this court in Udayan v. State
of Kerala, [2023 (1) KLT 371]. In view of the lacuna
pointed out above, it is to be held that the prosecution
could not establish the link evidence connecting the
accused with the contraband seized and the sample
analysed in the laboratory and in the said circumstances,
the revision petitioners are entitled to the benefit of
doubt."
17. Again in Anil Varghese v. State of Kerala
[2024 (6) KHC 490] this court held that it is well settled that
the specimen of the seal used is required to be affixed in the
contemporaneous mahazar, property list and in the forwarding
note, so as to enable the court to satisfy the genuineness of
the sample produced in the court. Further, the detecting officer
has also a duty to depose regarding the nature of the seal
affixed on the bottle containing the sample and the can
containing the remaining liquor.
18. Viewed in the light of the principles laid down
in the above-referred judgments, it is clear the absence of
specimen seal impression in Ext.P3 mahazar is fatal to the
prosecution. In the absence of such a specimen seal, the
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prosecution's evidence is insufficient to hold that the samples
drawn from the place of occurrence as well as the residue
reached the court in a tamper-proof condition. The trial court,
as well as the appellate court, failed to properly appreciate
these aspects.
Having considered the materials on record and the
submissions made at the bar, I find that the accused is entitled
to be acquitted, giving the benefit of reasonable doubt. In
result, the revision petition is allowed by setting aside the
impugned judgments dated 24.03.2007 in S.C. No. 624 of 2002
of the Assistant Sessions Judge, Payyannur, and 28.01.2013 in
Crl. Appeal No. 118 of 2007 of the Additional Sessions Judge,
Thalassery. The accused is not found guilty of the offence
under Section 58 of the Abkari Act and is acquitted of that
charge. At this juncture, the learned counsel for the revision
petitioner submitted that, pursuant to the order dated
04.03.2016 passed by this Court in Crl. M.A. No. 1297 of 2016,
the revision petitioner deposited a sum of Rs. 1,00,000/-
before the trial court. Needless to say, if the revision petitioner
deposited any such amount before the trial court, the same
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shall be returned to the revision petitioner as per rules, upon
proper acknowledgment.
Sd/-
MURALEE KRISHNA S.,
JUDGE
mea
