High Court allowed revision petition, holding absence of forwarding note and delay in producing contraband fatal to prosecution case under Abkari Act, setting aside conviction.
Conviction and sentence set aside; revision petitioner acquitted, set at liberty; bail bond cancelled.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938
Crl.Rev.Pet.No. 991 of 2010
Crl.A 837/2006 of ADDITIONAL SESSIONS COURT, IRINJALAKUDA SC 285/2004 of ADDL.ASST.SSESSIONS COURT, IRINJALAKUDA
REVISION PETITIONER/APPELLANT/ACCUSED:
VISWAMBARAN,
S/O. CHENNARA VELAYUDHAN,KARA COLONY, EDAVILANGU VILLAGE,, KODUNGALLUR TALUK.
BY ADV. SRI.A.C.DEVY
RESPONDENTS/RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,, ERNAKULAM.
PUBLIC PROSECUTOR, SHRI.C.K.PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
Crl.R.P. No.991 of 2010
Dated this the 27th day of September 2016
O R D E R
The accused in S.C. No.285 of 2004 on the files of
the Additional Assistant Sessions Court, Irinjalakuda filed
this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under
Section 8(2) of the Abkari Act.
about 3.00 p.m., the revision petitioner was found carrying
a plastic bag containing 10 litres of illicit arrack, in
contravention of the provisions of the Abkari Act.
Crl.R.P.991/2010
: 2 :
and Exts.P1 to P7 were marked for the prosecution, besides identifying MO1 to MO3. DW1 to DW3 were examined for the revision petitioner.
“Further in the absence specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of
Crl.R.P.991/2010
: 3 :
producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.”
In this case, no forwarding note was marked before the
Crl.R.P.991/2010
: 4 :
court. No forwarding note is also available with the
records of the court. In the said circumstances, the tamper
proof despatch of the sample to the laboratory could not be established by the prosecution. Consequently, it cannot be said that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the revision petitioner and in the said circumstances, the revision petitioner is entitled to benefit of doubt.
were produced before the court only on 27.9.2003 at 2.30 p.m. PW1 stated that the Excise office is situated nearly 300 metres away from the court. PW1 further stated that
Crl.R.P.991/2010
: 5 :
the contraband could not be produced before the court on that day as PW1 expected that the Excise Inspector would come on the next day. The said explanation given by the Excise Inspector is not a convincing explanation for the non-production of the articles before the court on the date of seizure itself. Therefore, there was unexplained delay in producing the contraband and the sample before the court in this case, which is no doubt fatal to the prosecution case. For the said reason also, the revision petitioner is entitled to benefit of doubt.
Crl.R.P.991/2010
: 6 :
In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 8(2) of the Abkari Act and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands cancelled and the revision petitioner is set at liberty.
Needless to state that if the revision petitioner had deposited any amount before the trial court pursuant to the direction of this court as per order dated 19.3.2010 in Crl.M.A. No.2943 of 2010, the revision petitioner is entitled to reimbursement of the said amount from the trial court.
Sd/-
B.SUDHEENDRA KUMAR, JUDGE
dl/27.9.2016
// True Copy //
PA to Judge
3 issues framed by the court
Whether to allow the revision petition challenging conviction and sentence under Section 8(2) of the Abkari Act.
Whether unmarked forwarding note and testimonial delay negate prosecution proof beyond reasonable doubt.
Whether to set aside conviction, sentence, and release the accused.
Colour shows how this judgement treated each authority
Prakasan v. State of KeralaApplied¶5
Prakasan v. State of Kerala [2016 (1) KLD 311]
1 provisions across 1 enactments
VISWAMBARAN
STATE OF KERALA
B.SUDHEENDRA KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
