Allowed

Mohanan v. State of Kerala

Kerala HC7 Jan 2016Crl.Rev.Pet/3166/2006

Case brief

AI extract

What is this about?

In a criminal revision petition challenging conviction for illicit possession of arrack under the Abkari Act, the High Court of Kerala set aside the conviction. The court held that the failure to produce a property list, forwarding note, and specimen seal impressions rendered the prosecution case unsustainable as the link between seized contraband and analyzed sample could not be established.

What did the court decide?

Conviction and sentence set aside; Revision petitioner acquitted of the offence under S.55(a) of the Abkari Act and set at liberty.

Mohanan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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Crl.Rev.Pet.No. 3166 of 2006 ( )

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AGAINST THE JUDGMENT IN CRL.A.NO.61/2002 of I ADDL.SESSIONS COURT, KOLLAM DATED 06.12.2005

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AGAINST THE JUDGMENT IN C.C.NO.607/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOTTARAKARA DATED 27.03.2002

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REVISION PETITIONER(S)/APPELLANT/ACCUSED::

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MOHANAN, S/O. PADMANABHAN, SOBHANA MANDIRATHIL, KIZHAKKEKARA MURI, VELIYAM VILLAGE, KOTTARAKARA TALUK, KOLLAM DIST.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE::

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STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.LILLY LESLIE.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-012016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RAJA VIJAYARAGHAVAN V, J.

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Crl.R.P.No.3166 of 2006

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Dated this the 07^th day of January, 2016

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O R D E R

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The revision petitioner, admitted by both sides to be a septuagenarian, challenges the concurrent findings of guilt

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arrived at against him by the courts below.

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As per judgment dated 27.03.2002, the learned Magistrate convicted the petitioner under S.55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for 2 years and to pay a fine of Rs.25,000/with a default clause. The above sentence was modified in appeal by the learned Sessions Judge and the sentence of imprisonment was limited to 6 months and he was directed to pay a fine of Rs.25,000/- with a default clause.

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The gravamen of the prosecution case is that on

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Crl.R.P.No.3166 of 2006

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18.11.1996 at about 4.30 p.m., the petitioner was found in possession of 8 litres of illicit arrack in a plastic can of 10 litre capacity, by PW3, the Sub Inspector of Pooyappally police station. On seeing the police officials, the petitioner had taken to his heels after leaving the contraband articles at the scene of crime and hence could not be caught redhanded. The police officers seized the contraband articles as per Ext.P1 mahazar and later, Crime No.292/1996 of Pooyappally police station was registered. The can found at the scene of crime was seized and sample was taken. Pursuant to completion of investigation, final report was laid before the jurisdictional court.

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PWs 1 to 3 were examined by the prosecution to prove its case through whom Exts.P1 to P4 were marked. MO1 was produced and identified. The learned magistrate, on an evaluation of the evidence, came to the conclusion that the oral testimony of PWs 2 and 3 was convincing and

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on its basis, came to the conclusion that the prosecution had successfully proved illicit possession of arrack by the petitioner in contravention of the Abkari Act. Holding so, he was convicted. It is the said finding which was upheld by the learned Sessions Judge.

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I have heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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The learned counsel appearing for the petitioner would submit that the version of the prosecution that the petitioner was the person in possession of the contraband article and that he had taken to his heels on seeing the police officials cannot be believed more so when no independent witnesses had supported the prosecution case. The learned counsel banking on a judgment rendered by a Division bench of this court and several other precedents pointed out that the absence of production of the list of

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articles seized and the forwarding note is to be regarded as fatal. According to the learned counsel, the prosecution has failed to prove in a convincing fashion, that the contraband articles which were seized at the scene of crime was the one which was sent to the Chemical Analysis Lab for the purpose of analysis. The learned counsel placed reliance on the judgment of this Court reported in Joseph Vs. State of Kerala [2009 (4) KHC 537], Ravi Vs. State of Kerala [2011 (3) KLT 353] and Manikantan Pillai Vs. State of Kerala [2014 (1) KLJ 267] to substantiate her contentions.

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On the other hand, the learned Public Prosecutor supported the conclusions arrived at by the courts below and has held that there is absolutely no reason to interfere with the considered findings entered into by the courts below. It was pointed out that Ext.P1 mahazar prepared by PW3 on 09.07.2001 details the procedures followed by the

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investigating officer pursuant to the search and seizure and the version of PW3 has been amply supported by the evidence of PW2. It is pointed out that Ext.P4 chemical analysis report conclusively reveals that the contraband articles contained ethyl alcohol and the defence cannot possibly challenge the said piece of evidence produced by the prosecution.

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I have anxiously considered the rival contentions and have perused the records. The fact that the petitioner was found in possession of 8 litres of illicit arrack in a 10 litre can on 18.11.1996 at 4.30 p.m is sought to be established by the prosecution on the basis of the evidence of PWs 2 & 3. PW3 is the detecting officer and PW2 is his subordinate officer. In order to prove the seizure, the prosecution has examined PW1, but he did not support the prosecution case.

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I find merit in the contention of the learned counsel appearing for the petitioner that the non production of the property list and also the forwarding note will make a serious dent in the prosecution case. It has been held by this court that the non production will prove fatal as it would not be possible to satisfy with cent percent certainty that the item allegedly seized from the scene of crime was the one which was subjected to analysis. (See Ravi Vs. State of Kerala [2011 (3) KLT 353] and Manikantan Pillai Vs. State of Kerala [2014 (1) KLJ 267] .

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The property list containing the details of property seized has neither been marked nor produced. There is also no acceptable materials to show that the sample bottles were sealed in accordance with law and the same was labelled. The specimen seals with the label has not been produced before court so as to authenticate the veracity of the seizure. Yet another infirmity in the

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prosecution case is that there is no request or forwarding note to indicate that a request was made to the learned magistrate to send the sample bottle to chemical examiner for the purpose of analysis.

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PW3, the detecting officer who conducted the investigation has no case that he had made any such request or that he had filed any forwarding note. It is also not discernible from the evidence of PW3 that he had made a request to the learned Magistrate to send the sample bottle to the chemical examiner. It is of course true that Ext.P4 chemical analysis report dated 31.12.1997 would reveal that the sample bottle was received for the purpose of analysis on 16.12.1996. In the absence of any forwarding note or requisition, it is inconceivable as to how the learned magistrate had forwarded the sample bottle to the chemical examiner as per his covering letter dated 10.12.1996 referred to in Ext.P4 chemical analysis

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certificate.

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It is further seen that the thondy clerk who was the custodian of the properties before the learned magistrate was not examined before court to prove relevant matters which would include the receipt of the property before the magistrate, its condition, the nature of the sample bottle, its seal and label and also the date of actual despatch of sample to the chemical examiner.

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I also find merit in the contention raised by the learned counsel appearing for the petitioner that the failure on the part of the prosecution to produce the sample seal and/or specimen impression of the seal, alleged to have been affixed on the sample by PW3 will prove fatal. Ext.P1 is the mahazar prepared at the time of effecting the seizure. Though PW3 has asserted that Ext.P1 was prepared at the place of seizure, Ext.P1 does not show the specimen

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impression of the seal affixed on MO1 and the sample bottle. The absence of specimen impression of the seal on the seizure mahazar and non production of the property list would exacerbate the matter further. No explanation is offered by the prosecution to explain the above laches. All these aspects were considered by this Court in Gopalan Vs. State of Kerala [2012 (4) KLJ 400] and it was laid down that graver the crime, greater should be the degree of proof required. The prosecution should not have rest content without producing the relevant documents and not following the procedure correctly.

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It has been held by this Court in Joseph Vs. State of Kerala [2009 (4) KHC 537] and in Ravi Vs. State of Kerala [2011 (3) KLT 353] that the prosecution can succeed in securing a conviction against the accused in a case of this nature only if it is shown that the sample which is subject to chemical analysis as evidenced by Ext.P4

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certificate was exactly the same sample which was drawn from the bulk quantities seized as per Ext.P1 mahazar held by the accused and that the said contraband eventually reached the hands of the chemical examiner.

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In view of the above, this Court is of the view that the conviction entered and sentence passed by the courts below overlooking the above vital aspects of the matter cannot be sustained and the same is set aside. The revision petition is allowed and the petitioner is acquitted of the offence under S.55(a) of the Abkari Act and he is set at liberty.

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Sd/- RAJA VIJAYARAGHAVAN V, JUDGE.

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[True copy]

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P.A to Judge

Mohanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mohanan v. State of Kerala

Case brief

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