Allowed

K. Kallyani v. State

Kerala HC14 Dec 2012Crl.Rev.Pet/1360/2002

Case brief

AI extract

What is this about?

In a revision petition challenging convictions under the Abkari Act, the High Court of Kerala acquitted the accused because the prosecution failed to explain a 43-day delay in producing seized liquor or establish a tamper-proof custody chain, relying on precedent regarding inherent prejudice.

What did the court decide?

Judgments of courts below set aside; petitioner acquitted; bail bond cancelled and petitioner set at liberty.

K. Kallyani Vs State — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934

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Crl.Rev.Pet.No. 1360 of 2002 ( )

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CRA.39/1999 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD CC.1368/1997 of JUDICIL FIRSST CLASS MAGISTRATE COURT-II,HOSDRUG

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REVISION PETITIONER(S)/ACCUSED:

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K.KALLYANI D/O. VELLACHI, RESIDING AT KELOTH, PULLUR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT.

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BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR

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COMPLAINANT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM (CRIME NO.1 OF 1997 OF THE EXCISE INSPECTOR, HOSDURG RANGE) SMT SEENA RAMAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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SKV

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S. SIRI JAGAN, J

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Crl.R.P.NO.1360 OF 2002

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Dated this the 14^th day of December, 2012.

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ORDER

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This is yet another case where an accused in a prosecution

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under the Abkari Act has to be acquitted by this court,only because of the lapses on the part of the Excise Inspector concerned, in properly conducting the prosecution.

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The petitioner is the accused in C.C.No.1368/1997 before the Judicial First Class Magistrate-II, Hosdurg. She was prosecuted for an offence punishable under Section 55(a) of the Abkari Act. The case of the prosecution was that on 02.01.1997 at about 5.p.m., the petitioner was found carrying 750 ml. of arrack contained in a bottle of 750 ml. capacity, in violation of the provisions of the Abkari Act, thereby committing the offence charged against her. The prosecution examined PWs 1 & 2 and marked Exts. P1 to P3 and MO1. The accused did not adduce any evidence. After considering the evidence of the prosecution, the Magistrate convicted the petitioner and sentenced her to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/-. The petitioner challenged the judgment of the Magistrate in Criminal Appeal No.39/1999, which was dismissed

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Crl.R.P.NO.1360 OF 2002

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confirming the conviction and sentence. The petitioner is challenging the judgments of the courts below.

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The primary contention raised by the petitioner is that the alleged seizure was on 2.1.1997, whereas the contraband and sample were produced before the court only on 17.02.1997. There is not even any attempt to explain the long delay of 43 days, nor is there any evidence to prove in whose custody the contraband and the samples were during the interregnum. Therefore, according to the petitioner, in view of the Division Bench decision of this court in Ravi v State of Kerala (2011 3 KLT 353 ), the petitioner is entitled to be acquitted of the offence charged against him.

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The learned Public Prosecutor would argue that mere delay alone is not sufficient to discredit the evidence of the prosecution. The delay must result in prejudice to the petitioner on account of the delay. The petitioner has not made any attempt to show any prejudice on account of the delay. Therefore, the petitioner is not entitled to acquittal as claimed by her, merely on account of the delay, is the contention raised by the Pubic Prosecutor.

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Crl.R.P.NO.1360 OF 2002

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I have considered the rival contentions in detail.

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I am of opinion that the petitioner is entitled to

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succeed only on account of the failure on the part of the prosecution, either to explain the delay or to satisfy this court that the sample reached the chemical examiners' laboratory by change of hands in a tamper proof condition. In Ravi's case (supra), the Division Bench has categorically held that it is the bounden duty of the prosecution to explain the delay in producing contraband before the court. The Division Bench has further held

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that when there is delay in producing the contraband before the court, there is possibility that the sample would have been tampered and in such cases, the prosecution can succeed only if it is shown that the contraband liquor, which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. That decision is applicable to the facts of this case on all fours. I have gone through the evidence of PW2. He has not even attempted to explain the long delay of 43 days in producing the contraband and sample before the court. There is absolutely no evidence to prove the custody of the contraband and the sample during the

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Crl.R.P.NO.1360 OF 2002

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interregnum. As such, the prosecution has not proved that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. For that reason alone, the petitioner is entitled to be acquitted. Prejudice to the petitioner is inherent in the delay, since the petitioner has a right to get the contraband seized sent for chemical analysis, which cannot be ensured because of the delay. Therefore, there is no merit in the contention of the learned Public Prosecutor.

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Accordingly, the judgments of the courts below are set aside. The petitioner is acquitted of the offence charged against her. Her bail bond is cancelled and she is set at liberty.

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The Criminal Revision Petition is allowed as above.

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Sd/- S. SIRI JAGAN JUDGE

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/TRUE COPY/

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P.A. TO JUDGE

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SKV

K. Kallyani v. State

Case brief

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K. Kallyani v. State

Case brief

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