Allowed

Raveendran v. State of Kerala

Kerala HC1 Aug 2018Crl.Rev.Pet/1482/2006

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Kerala allowed the petition and acquitted the accused of possession of arrack under the Kerala Abkari Act. The court found legal infirmities due to unexplained delay in producing seized properties and the lack of evidence regarding sample collection by a single excise officer, causing prejudice to the accused.

What did the court decide?

The revision petitioner is acquitted of the offence and set aside from conviction and sentence; released from prosecution.

Raveendran Vs State of Kerala — Corruption | Kerala HC (2018)

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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 P.UBAID

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WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940

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Crl.Rev.Pet.No. 1482 of 2006

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AGAINST THE JUDGMENT IN CRA 274/2002 of II ADDL.SESSIONS COURT, THIRUVANANTHAPURAM

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AGAINST THE JUDGMENT IN CC 253/1999 of J.M.F.C.-II,NEDUMANGAD

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REVISION PETITIONER(S)/APPELLANT/ACCUSED

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RAVEENDRAN, S/O.YOHANNAN, KATADIKODE LANE, BONACAUD ESTATE, KOTTAKKAKOM MURI, VITHURA VILLAGE,, NEDUMANGAD TALUK, THIRUVANANTHAPURAM.

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BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHY.S.NATH SRI.PRABHU VIJAYAKUMAR SRI.P.K.SHIYAS SMT.VEENA KRISHNAN

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RESPONDENT(S)/COMPLAINANT/COMPLAINANT:

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STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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~~~~~~~~~~

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Crl.R.P No.1482 of 2006

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~~~~~~~~~~~

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Dated this the 1^st August, 2018

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O R D E R

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The revision petitioner herein challenges the conviction and sentence against him under Section 58 of the Kerala Abkari Act ('the Act' for short) in C.C 253/1999 of the Judicial First Class Magistrate Court, Nedumangad. He faced prosecution in the court below on the allegation that at about 4.30 p.m on 29.3.1997, on the road leading to the Bonacord Estate, Vithura, he was found possessing arrack in a plastic can of 5 litres of capacity. The offence was detected by the Excise Inspector of the Nedumangad Excise Range. He arrested the accused on the spot, and seized the plastic can as per a mahazar. On the basis of the arrest and seizure, he registered the crime and occurrence report, he conducted investigation and he also submitted final report in court.

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The accused appeared before the learned Magistrate and pleaded not guilty when the substance of

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Crl.R.P No.1482 of 2006

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the accusation was read over and explained to him. The prosecution examined four witnesses and proved Exts.P1 to P5 documents in the trial court. The MO1 plastic can was also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence.

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On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of 25,000/- by judgment dated₹ 31.07.2002. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Thiruvananthapuram with Crl.A No.274/2002. In appeal, the learned II Addl. Sessions Judge confirmed the conviction subject to the alteration to Section 58 of the Act and modified the sentence. Accordingly, the jail sentence was reduced to simple imprisonment for 15 days and the fine sentence was reduced to 5000/-. Now the accused is₹ before this Court in revision challenging the legality and propriety of the conviction and sentence.

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Crl.R.P No.1482 of 2006

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On hearing both sides, and on a perusal of the materials, I find some legal infirmities in this case, the benefit of which must go to the accused. The offence was detected by the Excise Inspector of the concerned range. He is PW3. PW4 is the Preventive Officer who assisted PW3 in the process of detection. These two witnesses have given evidence regarding the seizure of a plastic can containing some liquid from the hands of the accused. The crucial question is whether this liquid was identified as arrack or any other sort of liquor.

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The detection was made on 29.3.1997, but the properties were produced in court only on 1.4.1997. PW3 has no explanation for the delay, and he has no case that the properties were in his safe custody till 1.4.1997. The possibility of tampering cannot be ruled out in this case especially in view of the fact that sample was collected later, somewhere else. PW3 or PW4 has no case that any sample was taken from the liquid contained in the MO1 plastic can on the spot. It is not known who collected sample or where it was collected or how it was collected.

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Crl.R.P No.1482 of 2006

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The forwarding note is not seen produced in this case.

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This Court has settled the position that the copy of the forwarding note must be proved in evidence and it must contain the specimen of the seal affixed on the sample. This Court has also settled that the properties involved in Abkari cases shall be produced in court without any delay, and if any delay had occurred, the delay must be properly and satisfactorily explained. The object is to rule out any possibility of tampering with the properties. This is a case where everything was done by the Excise Inspector. He detected the offence, he registered the crime and occurrence report, he conducted investigation and he submitted final report also. In a case where everything was done by a single officer, the prosecution will have to convince the court that no sort of prejudice was caused to the accused. This is a case where I find some prejudice. It is not known who collected sample from the liquid in the MO1 plastic can, how it was collected and what seal was affixed on the sample. There is no evidence on these aspects. PW3 who detected the offence has no case that

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Crl.R.P No.1482 of 2006

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he had collected sample or how he collected, or that he had affixed any seal on the sample. In the absence of such evidence, the sample produced in court, to which the chemical analysis report relates, cannot be identified as the one seized from the possession of the accused. It appears that somebody collected sample at the court on production of the properties in court after three days. It is not known who collected sample or under what authority the person collected sample. Definite it is, that prejudice was caused to the accused by the one man show made by the Excise Inspector. There is no satisfactory material to identify the sample produced in this case. The detection mahazar also does not show that sample was taken. The benefit of the infirmities discussed above must go to the accused.

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In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 58 of the Kerala Abkari Act and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him in CC 253/1999 of the court below and modified in appeal by the appellate court will stand set

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Crl.R.P No.1482 of 2006

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aside and the revision petitioner will stand released from

prosecution.

Sd/-

P.UBAID JUDGE

/True copy/

P.S to Judge

Raveendran v. State of Kerala

Case brief

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Raveendran v. State of Kerala

Case brief

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