Allowed

Ratheesh v. State of Kerala

Kerala HC7 Jan 2021Crl.Rev.Pet/332/2015

Case brief

AI extract

What is this about?

The High Court acquitted the appellant in a Kerala Abkari Act case for unlawful possession of arrack. The Court set aside the conviction because the prosecution failed to produce a forwarding note linking the seized sample to the one analyzed by the chemical examiner, breaking the chain of evidence.

What did the court decide?

The revision petition was allowed; the accused is acquitted and set at liberty; bail bond cancelled.

Ratheesh Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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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 N.ANIL KUMAR

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THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

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Crl.Rev.Pet.No.332 OF 2015

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AGAINST THE JUDGMENT IN SC NO.329/2010 OF THE ASSISTANT SESSIONS COURT, CHENGANNUR DATED 04.07.2012

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AGAINST THE JUDGMENT IN CRL.APPEAL NO.238/2012 DATED 24-04-2014 OF ADDITIONALSESSIONS COURT - III, MAVELIKKARA

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REVISION PETITIONER/APPELLANT/ACCUSED:

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RATHEESH, AGED 32 YEARS S/O.RAVEENDRAN, THARAYIL VEEDU, PRAYAR MURI, PANDANAD VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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BY ADVS. SRI.AJITH MURALI SRI.K.V.ANIL KUMAR SMT.SWAPNA VIJAYAN

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RESPONDENT/COMPLAINANT/STATE:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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SR.PUBLIC PROSECUTOR SRI. M.S.BREEZ

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.332 OF 2015

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ORDER

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Dated this the 7^th day of January 2021

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In a prosecution under Section 8(2) r/w 8(1) of the Kerala Abkari Act, the revision petitioner was convicted and sentenced to undergo rigorous imprisonment for three months and also to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for one month in SC No.329 of 2010 on the file of the Assistant Sessions Court, Chengannur. The revision petitioner preferred Crl.Appeal No.238 of 2012 before the Additional Sessions Court-II, Mavelikkara. By its judgment dated 24.04.2014, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed on the revision petitioner. Feeling aggrieved, the revision petitioner is before this Court.

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The prosecution case in brief is that, on 26.03.2007 at 6.00 p.m, the accused was found carrying one litre of arrack in a 1.5 litre plastic bottle in the road infront of the Trikkypurath Mahavishnu Temple at Prayar muri contrary to the provisions contained under the Abkari Act and Rules framed thereunder.

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Crl.Rev.Pet.No.332 OF 2015

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During the trial of the case, PWs 1 to 5 were examined and marked Exts.P1 to P6 and MO1 on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced, when the accused was called upon to enter on his defence.

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Heard Sri.K.V.Sreeraj, the learned Amicus Curiae appointed by this Court for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.

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The learned Amicus Curiae for the revision petitioner submitted that no forwarding note was marked in this case. The learned Amicus Curiae further submitted that Ext.P1 seizure mahazar prepared by PW1 on the date of occurrence was not produced in court in time.

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The learned Senior Public Prosecutor on the other hand submitted that all the material documents were produced before the court along with the accused on 26.03.2007.

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Crl.Rev.Pet.No.332 OF 2015

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According to the learned Public Prosecutor, both the trial court and the appellate court concurrently held that the accused was found in possession of one litre of arrack in a plastic bottle through the road infront of the Trikkypurath Mahavishnu Temple at Prayar muri. It was submitted that unless the findings are perverse, it would not be proper for the revisional court to interfere in revision.

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Ext.P6 is the certificate of chemical analysis prepared by the Chemical Examiner to Government of Kerala. Ext.P6 would show that one sealed bottle containing 200 ml of clear and colourless liquid alleged to be arrack involved in Crime No.52 of 2007 of Chengannur Excise Range was received for chemical analysis. On analysis, the chemical examiner reported the presence of ethyl alcohol in the sample. The sample of liquid contained 33.39% by volume of ethyl alcohol. When the prosecution relies upon Ext.P6 Chemical Analysis Report in respect of sample sent for analysis to prove the offence against the accused, it is obligatory on the part of the prosecution to prove that the contraband which was examined by the chemical

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Crl.Rev.Pet.No.332 OF 2015

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examiner was the very same sample drawn from the contraband seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner. In the case on hand it is clear that Ext.P4 crime and occurrence, Ext.P3 arrest notice, Ext.P2 arrest memo etc. were produced along with the accused on 26.03.2007 before the learned Magistrate. In all the above documents, the learned Magistrate affixed his dated signature with reference to the time of receipt. Ext.P4 would show that the learned Magistrate received the crime and occurrence on 26.03.2007 at 9.10 p.m. However, the seizure mahazar prepared by PW1 on 26.03.2007 was received by the Excise Inspector on 26.03.2007 as per the endorsement thereon. However, no endorsement is made therein by the learned Magistrate. Ext.P1 seizure mahazar is an important document to prove the prosecution case. There is yet another lacuna in the prosecution case. The copy of the forwarding note allegedly prepared by PW1 for sending the sample for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression

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Crl.Rev.Pet.No.332 OF 2015

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of the seal used for sealing the bottles containing the samples. In the absence of forwarding note marked in evidence, it cannot be assumed that the very same samples taken at the spot of the occurrence had reached the chemical examiner for chemical analysis in a tamper proof condition. There is nothing on record to show that Ext.P1 seizure mahazar was produced before the court on 26.03.2007 as alleged by the prosecution. In the absence of specific endorsement thereon, it is very difficult to hold that the contraband seized by PW1 in a sealed condition was produced before the court along with the accused on the date of production of the accused before the court. In the above circumstances, the mere production of a laboratory report that the sample tested contained 33.39% by volume of ethyl alcohol cannot be a conclusive proof by itself. There is nothing on record to show that the sample seized and that tested by the chemical examiner are correlated.

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In the absence of legal evidence, the trial court went wrong in convicting the accused relying on the oral evidence of PW1 itself. Both the trial court and the appellate court

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Crl.Rev.Pet.No.332 OF 2015

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erroneously appreciated the evidence on record without considering the above legal aspects involved. Hence, the conviction and sentence rendered by the trial court, which was later confirmed by the appellate court are liable to be set aside.

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In the result, the revision petition is allowed. The revision petitioner/accused is found not guilty for the offence under Section 8(2) r/w 8(1) of the Abkari Act and he is acquitted thereunder. Cancelling his bail bond this Court directs that he be set at liberty. If any fine amount is deposited by the accused during the pendency of the revisional proceeding before the trial court, the same shall be refunded to the accused/revision petitioner, in accordance with law. Pending applications, if any, stand disposed of.

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Sd/-

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N.ANIL KUMAR, JUDGE

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dlk/07.01.2021

Ratheesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ratheesh v. State of Kerala

Case brief

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What did the court decide?

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