Allowed

Meethale Rayaroth Sreedharan v. Circle Inspector of Excise

Kerala HC23 May 2023Crl.Rev.Pet/2318/2003

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition, setting aside the conviction and sentence of the accused under the Kerala Abkari Act for transporting illicit arrack. The court held that the absence of the Investigating Officer\'s seal on the seizure mahazar broke the chain of evidence linking the seized sample to the laboratory report, necessitating acquittal.

What did the court decide?

Revision petition allowed, conviction and sentence set aside.

Meethale Rayaroth Sreedharan Vs Circle Inspector of… — Writ and Judicial Review | Kerala HC (2023)

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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 BECHU KURIAN THOMAS

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TUESDAY, THE 23^RD DAY OF MAY 2023 / 2ND JYAISHTA, 1945

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CRL.REV.PET NO. 2318 OF 2003

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CRA 50/1999 OF SESSIONS COURT,THALASSERY

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CC 380/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUTHUPARAMBA REVISION PETITIONER/ APELLANT/ ACCUSED :

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MEETHALE RAYAROTH SREEDHARAN, S/O. KANNAN, KOTTAYAM AMSOM, KINNAVAKKAL DESOM, KUTHUPARAMBA, THALASSERY TALUK

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BY ADVS. P.P.RAMACHANDRAN SHEJI P.ABRAHAM

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RESPONDENT/ RESPONDENT/ COMPLAINANT :

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CIRCLE INSPECTOR OF EXCISE, KUTHUPARAMBA RANGE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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BY SRI.C.N. PRABHAKARAN, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.REV.PET NO. 2318 OF 2003

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BECHU KURIAN THOMAS, J.

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Crl.R.P.No.2318 of 2003

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Dated this the 23^rd day of May, 2023

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ORDER

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Revision petitioner is the accused in C.C.No.380/1996 on the files of the Judicial First Class Magistrate's Court, Kuthuparamba. He faced trial along with another accused for the offence under Section 55(a) of the Kerala Abkari Act, 1077.

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According to the prosecution, the accused had on 29.11.1995 transported 100 litres of illicit arrack in ten plastic cans in an Autorikshaw bearing Registration No.KRC.8672, driven by the first accused through a public road. Even though the petitioner and the 2^nd accused had pleaded not guilty, the learned Magistrate by judgment dated 20.01.1999 found both the accused guilty and sentenced them to undergo rigorous imprisonment for 9 months and to pay a fine of Rs.25,000/-.

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Aggrieved by the conviction and sentence, the first accused who is the revision petitioner, alone, preferred an appeal before the Sessions Court, Thalassery as Crl.A.No.50 of 1999. By judgment dated 18.02.2003, the appellate court, after confirming conviction, modified the sentence of imprisonment and reduced it to three months but sustained the sentence of fine.

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This revision petition has been preferred challenging the said

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CRL.REV.PET NO. 2318 OF 2003

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conviction and sentence.

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It is appropriate to mention that even though this Court had suspended the sentence of imprisonment on condition of executing a bond for Rs.25,000/- with two solvent sureties, the revision petitioner failed to comply with the condition to pay the fine. It is informed by the learned Public Prosecutor, based upon instructions dated 11.08.2010 from the Superintendent of Central Prison, Kannur, that revision petitioner had undergone imprisonment from 08.02.2004 till 06.11.2004 and that he had completed the period of sentence imposed upon him by the impugned judgment.

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Despite the above, the learned counsel for the petitioner vehemently contended that the conviction and sentence imposed upon the revision petitioner is without any basis and that the judgments are perverse and are liable to be interfered with.

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Sri.C.N.Prabhakaran, the learned Public Prosecutor submitted that the judgments warrant no interference as the learned Magistrate as well as the learned Sessions Judge had appreciated the evidence adduced and came to the conclusion that the accused was proved to have committed the offence.

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Prosecution examined PW1 to PW3 and had marked Ext.P1 to Ext.P8 apart from MO1 series. The learned Magistrate came to the conclusion that the accused had transported 100 litres of illicit arrack in the autorikshaw belonging to the 1^st accused on 29.11.1995. Two

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CRL.REV.PET NO. 2318 OF 2003

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witnesses examined as PW2 and PW3 were the independent witnesses. Though PW2 turned hostile, he had admitted the signature in the mahazar. By the evidence of PW1, who is the Circle Inspector of Excise and that of PW3, the independent witness, the transportation of the alleged contraband in the autorikshaw belonging to the petitioner was clearly proved.

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However, there is an omission in the investigation conducted and that is fatal to the prosecution case. Even though the forwarding note marked as Ext.P7 contain the seal of the Investigating Officer, such a seal of the Investigating Officer is not seen affixed on the seizure mahazar to connect the contraband seized from the accused with the sample send for analysis. In the absence of affixure of the seal to connect the contraband seized with the sample send for analysis, the link becomes broken which is undoubtedly fatal to the prosecution case.

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In the decision in Vijay Pandey v. State of Uttar Pradesh

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[AIR 2019 SC 3569] , the Supreme Court had observed that “the failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related”. Similarly in the decision in Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744] , it was held that

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CRL.REV.PET NO. 2318 OF 2003

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specimen impression of seal must be affixed on the seizure mahazar and its absence casts a shadow of doubt on the prosecution case.

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In the instant case, as noted earlier, the specimen seal is not seen affixed on Ext.P3 seizure mahazar or on any other document prepared at the time of seizure of the alleged contraband. The prosecution case cannot, therefore, be said to have been proved beyond reasonable doubt and the accused is entitled to the benefit of doubt.

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Accordingly, I allow this revision and set aside the conviction and sentence imposed upon the revision petitioner in C.C.No.380/1996 on the files of the Judicial First Class Magistrate's Court, Kuthuparamba as confirmed in Crl.A.No.50 of 1999 on the files of the Sessions Court, Thalassery.

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The criminal revision petition is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS, JUDGE

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RKM

Meethale Rayaroth Sreedharan v. Circle Inspector of Excise

Case brief

What is this about?

What did the court decide?

Meethale Rayaroth Sreedharan v. Circle Inspector of Excise

Case brief

What is this about?

What did the court decide?

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