IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 Crl.Rev.Pet.No. 2959 of 2008() ---------------------------------- CRA.76/2005 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA SC.63/2002 of ASSISTANT SESSIONS COURT, PATHANAMTHITTA .................... PETITIONERS:LEGAL HEIRS OF THE APPELLANT/ACCUSED:- ----------------------------------------------------------------------------- 1. KUMARI, AGED 52 YEARS, W/O.KUTTAN, THIRUMANGALATHU PUTHEN VEEDU THEKKUNILAM P.O. V. KOTTAYAM VILLAGE KOZHANCHERRY TALUK. 2. ANIL KUMAR, AGED 31 YEARS S/O.KUTTAN, THIRUMANGALATHU PUTHEN VEEDU THEKKUNILAM P.O. V. KOTTAYAM VILLAGE KOZHANCHERRY TALUK. 3. LETHA, AGED 25 YEARS D/O.KUTTAN, THIRUMANGALATHU PUTHEN VEEDU, THEKKUNILAM P.O. V. KOTTAYAM VILLAGE KOZHANCHERRY TALUK. 4. DEEPA, AGED 22 YEARS, D/O.KUTTAN THIRUMANGALATHU PUTHEN VEEDU, THEKKUNILAM P.O. V.KOTTAYAM VILLAGE KOZHANCHERRY TALUK. BY ADV. SRI.M.T.SURESHKUMAR SRI.RAJA VIJAYARAGHAVAN RESPONDENT: RESPONDENT/COMPLAINANT ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 5 /11 /2008 THE COURT ON 05/11/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2959 OF 2008 =========================== Dated this the 5th day of November,2008 ORDER Revision petitioners are the widow and children of the accused in S.C.63/2002 on the file of Assistant Sessions Court, Pathanamthitta. The deceased accused was charged for the offence under section 8 and 55(a) of the Abkari Act. Prosecution case was that on 28.1.1999 at about 6- 45 p.m accused was found transporting 4 litres of illicit arrack in M01 plastic can having a capacity of 10 litres while PW3 the Excise Inspector, Konni Ranage along with PW1 Excise Guard who were on patrol duty reached near the house of Rajappan Nair. Finding the excise party petitioner attempted to run away with M01 can. He was stopped and searched. M01 was seized and Ext.P1 mahazar was prepared as it was found that M01 can contained illicit arrack. It was alleged that accused thereby committed the offence under section CRRP 2959/2008 2 8 and 55(a)of the Abkari Act. PW2 after completing the investigation laid the charge. When the charge for the offence under section 8 and 55(a) of the Abkari Act was framed and read over accused, pleaded not guilty. Prosecution examined five witnesses and marked five exhibits and identified M01. On the evidence accused was questioned. Though he was called upon to adduce evidence, he did not adduce evidence. Learned Assistant Sessions Judge found him guilty and convicted and sentenced him to rigorous imprisonment for three years and a fine of Rs.1,00,000/- and in default rigorous imprisonment for two years. Accused challenged the conviction before Addl.Sessions Court, Pathanamthitta in Crl.A.76/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to rigorous imprisonment for one year and a fine of Rs.1,00,000/- and in default rigorous imprisonment for one year. Subsequent to the dismissal of the appeal accused died. As the sentence includes CRRP 2959/2008 3 fine of Rs.1,00,000/-, legal heirs of the accused filed the revision. 2. Learned counsel appearing for petitioners argued that even if the evidence of Pws.1 and 3 is believed, there is no evidence to prove that Ext.P2 report of chemical analysis is in respect of the articles seized from the accused. It was pointed out that as per Ext.P1 mahazar as well as the evidence of Pws.1 and 3, M01 can was found in the possession of the accused and it contained 4 litres of illicit arrack. Under Ext.P5 it was produced before the court. As per Ext.P2 report what was examined at the chemical laboratory was a bottle containing 300 ml. of arrack which was sealed and there is no evidence to prove that a sample was prepared from M01 seized from the accused. It was argued that when M01 was identified and marked before the Assistant Sessions Judge, at the time of examination of Pws. 1 to 3, it was not sealed and there was no liquor in it and in such circumstance, based on Ext.P2 report courts below should not have CRRP 2959/2008 4 convicted the accused. 3. There is force in the submission made by the learned counsel. Accused could be convicted only by establishing that he was in possession of illicit arrack as alleged by the prosecution. As per Ext.P1, M01 can containing 4 litres of illicit arrack was seized from the accused. Ext.P1 shows that it was sealed then and there and signature of the accused and witnesses were obtained on that sealed can. But evidence shows that when it was identified by Pws.1 and 3 from the court there was no such seal. Eventhough Pws. 1 and 3 deposed that he filed a report before the court to forward the illicit arrack to the Laboratory for chemical analysis, the forwarding note was not marked or proved. There is no evidence to prove that there was a prayer to take a sample out of the illicit arrack seized and produced by PW3. There is no evidence to prove that it was the articles which was seized under Ext.P1 which was forwarded to the chemical analysis or examined at the laboratory CRRP 2959/2008 5 for Ext.P2 report. In such circumstance, based on Ext.P2 report, it is not possible to hold that the accused was possessing illicit arrack. 4. The proceeding paper of Assistant Sessions Judge, Pathanamthitta shows that after examination of Pws.3 to 5 on 28.1.2005, case was posted for questioning the accused under section 313 of Code of Criminal Procedure to 31.1.2005. On that day accused was present and he was questioned under section 313 of Code of Criminal Procedure. Learned Assistant Sessions Judge did not hear the prosecution and the defence as provided under section 232 of Code of Criminal Procedure and instead posted the case for defence evidence. Posting the case calling upon the defence to adduce evidence would arise only under section 233 of Code of Criminal Procedure and that could only be after hearing the prosecution and the defence as provided under section 232 and it is found that there is evidence to connect the accused with the offence charged. The accused should not have been CRRP 2959/2008 6 called upon to adduce evidence before completing the procedure provided under section 232 of Code of Criminal Procedure as has been done by the Sessions Judge. Therefore the procedure adopted by the Sessions Judge is not correct. As held by this court, non-compliance of the provision to Section 232 of Code of Criminal Procedure goes to the root of the case. In the ordinary course it is a sufficient ground to set aside the conviction and to remand the case. If that course is adopted, the result could only be that the conviction is to be set aside and trial is to be proceeded from the stage of Section 232 of Code of Criminal Procedure. If that be so, when the sole accused is no more, the case can only be closed as offence has abated on the death of the accused. In such circumstances also the conviction is not maintainable. The Criminal Revision Petition is allowed. Conviction and sentence passed by the Assistant Sessions Judge, Pathanamthitta in S.C.63/2002 as confirmed by the Additional Sessions Judge, CRRP 2959/2008 7 Pathanamthitta is set aside. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006