IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 897 of 2001() ----------------------------- CRA.221/1998 of SESSIONS COURT, KOZHIKOE CC.286/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MANIKAM, AGED 61 YEARS, W/O.CHOYI, ELAVAMBRAKUNNUMMAL HOUSE, PUTHUR AMSOM, VENNAKKODE DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 9/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.897 of 2001 -------------------------------------- Dated this the 9th day of December, 2008. ORDER This revision arises from the conviction and sentence of the revision petitioner for offence punishable under Section 58 of the Abkari Act. Revision petitioner was sentenced to undergo simple imprisonment for six months and payment of fine of Rs.15,000/-. Appeal preferred by her ended in dismissal. Hence this revision. 2. Heard both sides. 3. Following points arise for consideration:- I. Whether revision petitioner was found in possession and transporting illicit arrack as alleged? II. Whether sentence is legal and proper. 4. Perused the records. Crl.R.P.No.897/2001 2 5. Point No.I Alleged detection of the offence was on 22.8.1995. Preventive Officer, Kunnamangalam is said to have detected the offence. He gave evidence as PW1. Supporting evidence is given by PW4, Guard. Ext.P1 is the seizure mahazar said to be prepared by PW1. Evidence of PWs 1 and 4 is that on 22.8.1995 at about 12.30 p.m. while themselves and party while on patrol duty reached the place of occurrence, found the revision petitioner coming against them carrying a can which contained the contraband. On examination, the can was found to contain two litres of illicit arrack. It is stated that revision petitioner was arrested at the spot and released on bail. PW1 drew sample from the contraband and the same as well as the rest were taken to custody. Ext.P1 is the mahazar for the alleged seizure. Ext.P2 is the bail bond executed on 22.8.1995. ExtP3 is the crime and occurrence report dated 22.8.1995. Ext.P4 is the requisition for sending the sample for chemical examination and Ext.P5 is the report of chemical examination. In Ext.P5, it was reported that the sample contained ethyl alcohol. PW2 is an attestor in Ext.P1. Though PW2 stated in chief-examination that excise people seized the arrack and arrested the revision petitioner, in cross-examination he stated that he signed Ext.P1 on the road and that he had not seen the alleged seizure. PW3 is the Excise Inspector who claimed to have received material object and records at about 7 p.m. on 22.8.1995 and registered the case. It is contended by the learned counsel for revision petitioner that evidence of PWs 1 and 4 is not reliable. Crl.R.P.No.897/2001 3 6. Though PW2 started by saying that he saw the seizure, in cross- examination he stated that he had not seen the seizure. Strangely, no attempt was made to declare PW2 as hostile to the prosecution nor was any question put to him in re-examination. Therefore, evidence of PW2 cannot be given any reliance. What remains is the evidence of PWs 1 and 4. Ext.P1, seizure mahazar though, prepared on 22.8.1995 is seen produced in court only on 7.10.1995. Exts.P2 and P3 are dated 22.8.1995 but are seen produced in court only on 7.10.1995 and 26.8.1995, respectively. Ext.P4, request for sending the sample for chemical examination though, dated 23.8.1995 reached the court only on 26.8.1995. The further fact revealed by the evidence is that the material objects were produced in court only on 26.8.1995. According to PW3, he had entrusted the material objects for production in court on 23.8.1995 but the same was produced only on 26.8.1995. PW3 was not able to explain the delay that occurred in producing the material object and the records in court. According to PW1, himself and party were travelling in a jeep which was stopped about 150 metres away from the place where revision petitioner was seen and they walked upto the place where revision petitioner was seen. PW4 would say that they saw the revision petitioner about 15 metres away and stopped the jeep and then intercepted her. He does not remember whether the jeep was a department jeep or not. This is a case in which the material object and records were sent to the court belatedly. Crime and occurrence report was produced in the court only four days after the alleged detection of the offence. Ext.P1, though prepared on 22.8.1995 was produced in court only on 7.10.1995. Delay in production of Crl.R.P.No.897/2001 4 material objects and records in the court is fatal to the prosecution. In the facts and circumstances of the case, the revision petitioner is entitled to acquittal. Sentence is also to be set aside. Resultantly, revision petition succeeds. Conviction and sentence are set aside. Revision petitioner is acquitted of the charges. Bail bond is cancelled. Crl.M.P.No.4237 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.897/2001 5 Thomas P.Joseph, J. Crl.R.P.No.897 of 2001 ORDER 9th December, 2008