IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 1464 of 2001() --------------------------------------- CRL. A. NO.410 OF 1998 OF SESSIONS COURT, KOZHIKODE DIVISION. C.C.NO.297 OF 1997 OF JUDICIAL 1ST CLASS MAGISTRATE -II, THAMARASSERY. REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- LEELA, W/O. DAMODARAN, RESIDING AT AMBEDKAR COLONY, KEDAVOOR AMSOM, CHAMAL DESOM OF KOZHIKODE TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT/STATE : -------------------------------- EXCISE INSPECTOR, THAMARASSERY, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERAlA, ERNAKULAM. BY SMT. PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL.R.P.No. 1464 of 2001 ----------------------------------- Dated this the12th day of December, 2008 O R D E R Case is that on 11/07/1996 at about 11.45 A.M, revision petitioner was found in possession of about 4 liters of illicit arrack in a plastic Can, that was detected by PW1, Excise Circle Inspector, Kozhikode, and the contraband was allegedly seized. Revision petitioner faced trial for the offence punishable under Section 58 of the Abkari Act, was convicted and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.15,000/-. Appeal ended in dismissal. Hence this revision. 2. Heard both sides. 3. Following points arose for consideration; 1. Whether conviction of revision petition is legal and proper? 2. Whether sentence is excessive? 4. Perused the records. CRL.R.P.No. 1464 /2001 2 5. Point 1: PW1, Excise Circle Inspector who is said to have detected the offence stated that on 11/07/1996 at about 11.45 A.M while on patrol duty, when himself and party reached the road in front of the Anganvady at Ambedkar Colony, they found the revision petitioner carrying the contraband in a plastic bag. He drew sample from the contraband and the same as well as the rest were properly packed and sealed. Label containing the signatures of revision petitioner, himself and other witnesses were affixed and the same were seized as per Exhibit P1. He prepared Exhibit P2, crime and occurrence report on the same day. It is the version of PW1 that revision petitioner was released on bail on executing Exhibit P6, bail bond. PW2, guard gave similar evidence and identified MO.1, Can containing the rest of the contraband. PW3 is an attestator in Exhibit P1, but did not support the prosecution though admitted his signature. PW4 is the Excise Inspector, Thamarassery. He prepared Exhibit P3, crime and occurrence report, forwarded the articles and filed compliant against the Revision petitioner. Learned counsel contended that there CRL.R.P.No. 1464 /2001 3 was unexplained and inordinate delay in the material objects reaching the court concerned casting doubt on the identity of M.O.1 and placed reliance on the decision in Narayani Vs. Excise Inspector [2002(3) K.L.T 725]. 6. In the reported case, learned Single Judge of this court found that the delay in that case is fatal. I am not inclined to accept the proposition that in any and every case, delay in production of the records or material objects would itself result in throwing out the prosecution case. Nor is it proper or warranted that in any case of delayed production, the court must start with an initial presumption that the material objects have been tampered. That is because, tampering of material object cannot readily be inferred. Seizure, packing and forwarding of material objects to the court being part of official duty of the officer concerned, its regularity has to be presumed. Therefore, the question whether the delay in production of the material objects and the records affected the case depends on the facts of each case. 7. In the case on hand PW3 having refused to support, what is available is only the evidence of PWs 1 and 2. Though, Exhibit P1, CRL.R.P.No. 1464 /2001 4 the all important document produced by the prosecution to corroborate the evidence of PW1 is dated 11/07/1996, that reached the court only on 23/08/1996. The long delay is not explained. Exhibit P2, crime and occurrence report prepared by PW1 is dated 11/07/1996, but it reached the court concerned on 15/07/1996. Exhibit P3, crime and occurrence report was prepared by PW4 on 12/07/1996 but that also reached the court along with Exhibit P4, the request for chemical examination only on 15/07/1996. So far as Exhibit P6, bail bond is concerned, it gives no idea when it was produced in court. Date of production of that document in court is not clear. According to PW4, he produced Exhibit P6 in Court along with the final report on 22/08/1996. The list of material objects though not marked in evidence shows that it was prepared on 12/07/1996, but it reached court only on 15/07/1996. PW4 claimed that he had sent the material objects to the court on 12/07/1996 but pleaded ignorance about the delay of materials objects reaching the court only on 15/07/1996. That means, PW4 has not claimed that he was in possession of the material objects from 12/07/1996 till 15/07/1996. According to the Public Prosecutor, CRL.R.P.No. 1464 /2001 5 intervening holidays may have been the reason for delay in production of material objects. Assuming that holidays intervened, the officer concerned was bound to produce the records and material objects before the magistrate concerned wherever he was. That was not done. Though PW1 claimed that he had affixed his own zeal in the seizure mahazar, Exhibit P1 does not contain the specimen of the seal. More strange is that in Exhibit P4, requisition for sending the sample for chemical examination the seal of PW1 is not affixed. The seal given is that of PW4, Excise Inspector, Thamarassery. Therefore, that Exhibit P5, report says that the seal on the bottle tallied with the specimen seal should be with respect to the seal of PW4 (specimen) given in Exhibit P4. Prosecution was bound to prove safe custody of the material objects until its production in court. Learned magistrate observed that the signature on the label of M.O.1 resembled the signature of the revision petitioner in Exhibit P6 and Vakalath. Section 73 of Evidence Act permitted the court to compare the disputed signature with admitted one, but a conviction based on such comparison alone is not warranted. CRL.R.P.No. 1464 /2001 6 8. In the facts and circumstances of the case, I am inclined to accept the contention of the counsel for revision petitioner that the delay in production of materials objects and records is fatal. As such, conviction and sentence on the revision petitioner cannot be sustained. Resultantly, revision petition is allowed and the conviction and sentence on the revision petitioner are set aside and she is acquitted of the charge against her. Bail bond is cancelled. Criminal Miscellaneous Petition No.6895 of 2001 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm