Allowed

P.P.Raveendran v. the Excise Inspector

Kerala HC7 Jan 2021Crl.Rev.Pet/619/2007

Case brief

AI extract

What is this about?

In a criminal revision against convictions for transporting Indian Made Foreign Liquor, the Court held that the prosecution failed to prove the chain of custody, citing delays in producing evidence and missing forwarding notes. The petitioner was acquitted, bail cancelled, and directed to be set at liberty.

What did the court decide?

Conviction and sentence set aside; petitioner acquitted; bail bond cancelled; accused set at liberty; fine to be refunded if deposited.

P.P.Raveendran Vs the Excise Inspector — Constitutional and Fundamental Rights | 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.619 OF 2007

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AGAINST THE JUDGMENT IN CRL.APPEAL NO. 221/2001 OF ADDITIONAL SESSIONS JUDGE, THALASSERY DATED 15.12.2006

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AGAINST THE JUDGMENT IN CC NO.680/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS, TALIPARAMBA DATED 24.04.2001

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REVISION PETITIONER/APPELLANT/ACCUSED:

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PARAMBATH PUTHIYA PURAYIL AVEENDRAN S/O. NARAYANAN, AGED 38 YEARS,, PILATHARA, CHERUTHAZHAM AMSOM DESOM,, KANNUR TALUK, KANNUR DISTRICT.

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BY ADVS.

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SRI.V.A.SATHEESH SRI.V.JOHN SEBASTIAN RALPH SRI.V.T.MADHAVANUNNI

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RESPONDENT/COMPLAINANT/STATE:

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1 THE EXCISE INSPECTOR TALIPARAMBA EXCISE RANGE OFFICE,, KANNUR DISTRICT.

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2 THE STATE OF KERALA BOTH RESPONDENTS ARE REPRESENTED BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, AT ERNAKULAM.

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BY 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.619 OF 2007

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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 55(a) of the Kerala Abkari Act, the revision petitioner was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo simple imprisonment for two months in CC No.680 of 1997 on the file of the Judicial First Class Magistrate Court, Taliparamba. Challenging the conviction and sentence, the accused preferred Crl.Appeal No.221 of 2001 before the Additional Sessions Court, Thalassery. By its judgment dated 15.12.2006, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence passed by the trial court.

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The prosecution case in brief is that, on 13.01.1997 at about 4.30 p.m, the accused was found transporting 15 bottles of Indian Made Foreign Liquor ( nine bottles containing 375 ml and six bottles containing 180 ml) in a stage carriage bus under the

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Crl.Rev.Pet.No.619 OF 2007

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name and style “Sheraton Bus” bearing registration No.KRN 5866 in violation of the Abkari Act and Rules framed thereunder.

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During the trial of the case, PWs 1 to 3 were examined and marked Exts.P1 to P4 and MOs 1 to 3 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. When the accused was called upon to enter on his defence, DWs1 and 2 were examined on his side.

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Heard Sri.V.T.Madhavanunni, the learned counsel for

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the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.

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The learned counsel for the revision petitioner submitted that the persecution mainly relied on Ext.P4 certificate of Chemical Analysis issued by the Chemical Examiner. According to the learned counsel for the revision petitioner, when the prosecution relied upon the report of the chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only

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Crl.Rev.Pet.No.619 OF 2007

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if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. Elaborating on the submission, the learned counsel for the revision petitioner submitted that the copy of the forwarding note allegedly prepared by PW1 for sending the sample for chemical analysis was not marked in evidence. It was further submitted that the seizure mahazar was not produced to show that the contraband was seized by PW1 as alleged by the prosecution. In the above two legal grounds, the learned counsel for the revision petitioner assailed the evidence let in by PW1, the detecting officer in support of the prosecution case.

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Per contra , the learned Senior Public Prosecutor submitted that on 13.01.1997 at about 4.30 p.m, PW1, the Excise Inspector seized the material objects from the custody of the accused red handed and produced before the court without any delay whatsoever. It was further submitted that concurrent findings of conviction and sentence are sought to be assailed in revision and unless the findings are perverse, it would not be justified in exercising the powers under Section 401 of the Cr.P.C

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Crl.Rev.Pet.No.619 OF 2007

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to upset the concurrent findings of the two courts below.

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PW1 is the detecting officer. On 13.01.1997 at about 4.30 p.m., PW1, the Excise Inspector and party seized MOs1 to 3 from the custody of the accused while the accused was travelling in a stage carriage bus bearing registration No.KRN 5866 plying on Kannur-Kulingam route. PW2 is the driver of the bus. He is an attestor to Ext.P1 mahazar prepared by PW1. He has turned hostile to the prosecution. Ext.P2 is the search list. Ext.P1 and P2 were prepared on 13.01.1997. However, Ext.P1 and P2 were produced before the court on 14.05.1997. The delay in furnishing Ext.P1 and P2 before the trial court was not explained when PW1 and PW3 were examined before the trial court.

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Ext.P4 certificate of chemical analysis issued by the Joint Chemical Examiner to Government of Kerala would show that two sealed bottles containing 375 ml and 180 ml respectively of a amber colorued liquid alleged to be foreign liquor involved in Crime No.2 of 1997 of Thaliparamba Excise Range were received for chemical analysis. On analysis, the chemical examiner reported that ethyl alcohol was detected in

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Crl.Rev.Pet.No.619 OF 2007 6

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both samples. When the prosecution relies upon Ext.P4 Chemical Analysis Report to prove the offence under Section 55(a) of the Abkari Act against the accused, the prosecution is obliged to show that the two bottles of liquid which were examined by the chemical examiner were the very same samples drawn from the contraband seized. Further, there was an inordinate delay in producing the material objects before the court. The material objects were produced before the court only on 14.05.1997. The description of the properties given in Ext.P1 and P2 do not show that the bottles which contained the very same sample of liquid were the very same samples taken from the liquid contained in the contraband seized from the bus. When the contraband was seized by the Abkari Officer, the Abkari Officer was obliged to keep the contraband in safe custody until it was produced before the court. When PWs 1 and 3 were examined before the trial court, no explanation was offered by them to prove that the contraband seized by PW1 was kept by PW1 safely until the material objects were produced before court. In the absence of reliable evidence to prove the

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Crl.Rev.Pet.No.619 OF 2007

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same, the accused is entitled to get the benefit of doubt. There is yet another lacuna in the prosecution case. The copy of the forwarding note allegedly prepared by PW1 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. The copy of the specimen impression of seal is not produced as an exhibit in this case as well. In the absence of the forwarding note marked in evidence, it is difficult to hold that the prosecution has proved its case beyond reasonable doubt and that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition. Added to this, the delay in producing the material objects before the court immediately after the search and seizure has cut the root of the prosecution. Hence, the accused is entitled to get the benefit of doubt.

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Both the trial court and the appellate court erroneously appreciated the evidence on record without considering the above legal aspects in detail. Hence, the

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Crl.Rev.Pet.No.619 OF 2007

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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 55(a) 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

P.P.Raveendran v. the Excise Inspector

Case brief

What is this about?

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P.P.Raveendran v. the Excise Inspector

Case brief

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What did the court decide?

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