Petitioner convicted under Abkari Act challenged judgment citing delay in producing contraband. Court held absence of chain of custody, forwarding note, and sampling evidence created reasonable doubt. JUDAEMEET of lower courts set aside; petitioner acquitted.
Judgments of courts below set aside; petitioner acquitted; bail bond cancelled.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934
Crl.Rev.Pet.No. 76 of 2003 ( )
CRA.190/2000 of III ADDL.D.C., KOLLAM CC.622/1997 of J.M.F.C.-II,KOTTARAKKARA
REVISION PETITIONER(S):
JANARDHANAN PILLAI, S/O. NARAYANA PILAI, VASANTHA VILASATHIL CHEPRA MURI, UMMANNOOR VILLAGE.
BY ADV. SRI.S.RAJEEV
COMPLAINANT(S):
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.SEEMA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S.SIRI JAGAN, J.
================== Crl.R.P.No. 76 of 2003
================== Dated this the 30th day of October, 2012 O R D E R
The petitioner is the accused in C.C.No. 622/1997 before the Judicial First Class Magistrate's Court-II, Kottarakkara. He was prosecuted for offence punishable under Section 55(a) of the Abkari Act.
Crl.R.P.76/03 - : 2 :-
The petitioner is challenging the judgments of the courts below in this Criminal Revision Petition.
Crl.R.P.76/03 - : 3 :-
regarding the contraband and the guilt of the petitioner. The petitioner relies on the following decisions of this Court in support of his contention:
The learned counsel for the petitioner, therefore, argues for acquitting the petitioner on that ground.
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appellate stage. It is submitted that the Magistrate has observed that not a single question was put by the petitioner to the witnesses regarding the delay in production of the sample and the material object before the court. Therefore, according to the learned Public Prosecutor, delay cannot be held out as a reason for acquitting the petitioner. It is submitted that there is sufficient evidence adduced in the case to prove the guilt of the petitioner beyond a reasonable doubt.
custody the contraband article was, during the period from 6.1.1997 to 15.3.1997. Forwarding note for forwarding the same
Crl.R.P.76/03 - : 5 :-
for chemical analysis has not been marked in this case. There is no evidence to show that the sample taken from the contraband produced before the Magistrate was the one sent for chemical analysis. All these grounds have been held to be sufficient grounds to acquit the accused in the decisions referred to by the learned counsel for the petitioner. The decision in Narayani's case (supra), a learned Judge of this Court has held that in the absence of any evidence to prove that the residue and sample were kept in the proper custody till the date of production of the same before the court, the chance of tampering with the sample taken and the residue seized cannot be ruled out. On that ground, in that case, the accused was acquitted. In Sasidharan's case (supra), a learned Judge of this Court has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused, which had reached the hands of the Chemical Examiner in a fool-proof condition. In the absence of such evidence, in that case, the accused was acquitted. In Lalitha's case (supra), a learned Judge of this Court held that in the absence of any evidence as to who took the sample, no reliance can be given to
Crl.R.P.76/03 - : 6 :-
the report of the Chemical Examiner to conclude that the liquid is arrack. In Joseph's case (supra), a learned Judge of this Court has acquitted the accused in the absence of production or marking of the forwarding note to indicate that a request was made to the Magistrate to send the sample bottle to the Chemical Examiner for analysis. In Ravi's case (supra), a Division Bench of this Court has held that when there is a delay of more than 16 days in production of the contraband article before the court, there is possibility that the properties would have been tampered with. It was held in that case that the prosecution in a case of such a nature 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. I am of opinion that the facts noted above by me are clearly within the mischiefs coming within the purview of the decisions quoted above, which are sufficient to enter a verdict of acquittal in this case.
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by the accused in his defence. But from the cross-examination of the witnesses I find that sufficient suggestions have been put to the witnesses in respect of the prejudice on account of the defaults of the prosecution which are noted above. As I have already stated, no sampling was done by the Excise officers. There is no indication that the sampling was done by the court clerk. Forwarding note for forwarding the sample to the Chemical Examiner has not been produced or marked. The crossexamination of the Excise officers shows that the petitioner has a definite case that the contraband was one which was available in the Excise office, which was filled up in a can and produced before the court and not the one seized from the petitioner. It is for the prosecution to prove the case against the accused beyond a reasonable doubt.
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any time. I am of opinion that on those facts, it is not safe to convict the petitioner at all. There is no proof warranting conviction of the petitioner in the light of the decisions referred to above. Therefore, I am completely satisfied that the petitioner is entitled to an acquittal in this case. Accordingly, the judgments of the courts below are set aside. The petitioner is acquitted of the offence charged against him. His bail bond is cancelled.
The Criminal Revision Petition is allowed as above.
sdk+
Sd/S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
Crl.R.P.76/03 - : 9 :-
S.SIRI JAGAN, J.
==================
Crl.R.P.No. 76 of 2003
==================
O R D E R
30th October, 2012
3 issues framed by the court
Whether conviction is safe in absence of chain of custody and forwarding note for seized contraband.
Whether inordinate delay in producing contraband before court warrants acquittal.
Whether prosecution proved beyond reasonable doubt that sample sent for analysis matched seized article.
Colour shows how this judgement treated each authority
Narayani v. Excise InspectorFollowed¶37
Narayani v. Excise Inspector, 2002 (3) KLT 725
Sasidharan v. State of KeralaFollowed¶37
Sasidharan v. State of Kerala, 2007 (1) KLT 720
Joseph v. State of KeralaFollowed¶37
Joseph v. State of Kerala, 2009 (4) KHC 537
Ravi v. State of KeralaFollowed¶37
Ravi v. State of Kerala, 2011 (3) KLT 353
Lalitha v. State of KeralaFollowed¶37
Lalitha v. State of Kerala, 2012 (1) KLT 550
1 provisions across 1 enactments
Janardhanan Pillai
State of Kerala
S. Sir Jagan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
