IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 Crl.Rev.Pet.No. 483 of 2002() ----------------------------- CRA.586/2000 of ADDL.SESSIONS COURT, NORTH PARAVUR ST.1279/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- VARGHESE, S/O. CHERIYA,MOOJELY VEEDU, THURAVOOR KARA, THURAVOOR VILLAGE, ALUVA TALUK. BY ADV. SRI.P.B.ASOKAN SRI.GEO PAUL SMT.P.LATHA SRI.E.A.THANKAPPAN RESPONDENT(S)/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, ANGAMALY RANGE.(CRIME NO.4/97) BY PUBLIC PROSCECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON 11/06/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3246/2002 IN CRRP.NO.483/2002 DISMISSED. 11.6.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.483 OF 2002 (A) ----------------------------------- Dated this the 11th day of June, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner for the offence under Section 58 of the Abkari Act. Negativing his plea of not guilty, the learned Magistrate, convicting him of the above offence sentenced him to undergo rigorous imprisonment for three months and fine of Rs.15,000/- with default term of rigorous imprisonment for one month. In appeal, the Sessions Judge confirming the conviction upheld the sentence without any modification. Questioning the legality, propriety and correctness of the conviction and sentence concurrently held by the two courts below, the accused has come up with this revision. 2. The gist of the prosecution case is that on 1.2.1997, at about 12.30 p.m., an excise party headed by PW1 found the CRRP.483/02 2 accused with possession of a plastic kannas containing 1.5 litres of arrack without any permit or authority beside a public road. Sample was collected from the contraband seized and both sample and the residue were sealed at the spot preparing Ext.P1 mahazar. Accused arrested was later enlarged on bail. After investigation over the occurrence, report was registered over the seizure. PW5, the Excise Inspector laid the report indicting the accused of the offence under Section 58 of the Abkari Act. 3. Accused, on appearance, pleading not guilty when the particulars of the offence were made known prosecution examined PWs.1 to 5, got marked Exts.P1 to P5 and identified MO1 to prove its case. Questioning under Section 313 of Cr.P.C., the accused denying the guilt, maintained his innocence. The learned Magistrate, as already stated, found him guilty and he was thereupon convicted and sentenced as indicated above, which in appeal, was confirmed by the Sessions Judge. 4. I heard the learned counsel for the accused and also the learned Public Prosecutor. There is material discrepancy CRRP.483/02 3 in the evidence of PWs.1 and 2, the members of the excise party involved in the seizure of the contraband from the possession of the accused, and as such, their evidence is unworthy of credence, is the submission of the counsel. It is further contended that prosecution case was solely based on the evidence of the excise officials as the two independent witnesses, the attestors to Ext.P1 mahazar examined as PWs.3 and 4 had turned hostile to the prosecution case. Conviction of the accused on the evidence of the excise officials alone, according to the counsel, is unsustainable in the proved facts of the case, is the submission of the counsel. Lastly, it was contended that there was inordinate delay in the production of the sample and residue before the court, with no explanation offered for such delay, and it has vitiated the prosecution case as a whole. A plea was also made that in the event of this Court holding that the conviction is unassailable, a lenient view may be taken on the punishment imposed reducing the sentence of imprisonment and fine imposed against the accused. 5. I have perused the records of the case giving consideration to the submissions made by the counsel. A CRRP.483/02 4 review of the evidence in exercise of revision to examine the correctness of the finding entered by the inferior courts is permissible only where it is shown that the finding entered is so perverse or illegal which could not have been formed on the materials produced. Though I notice that there is some discrepancy in the evidence of PWs.1 and 2, the excise officials involved in the seizure of the contraband and arrest of the accused, in the proved facts of the case, it is not of much significance. PW1, in his evidence would state that seeing the excise party, the accused carrying a kannas and walking towards the excise party, speeded his steps and then he was intercepted and the contraband was seized. PW2, the Preventive Officer would state that seeing the excise party, the accused going towards them with a kannas turned back and speeded up his steps, which is found to be in tune with what is recorded in Ext.P1 mahazar. The discrepancy in the evidence of these witnesses, two excise officials, shown above is of no consequence where even PWs.3 and 4, the attestors to Ext.P1 mahazar, who turned hostile to the prosecution case denying the seizure of the contraband from the possession of the accused, admitted the presence of the accused with the excise party. Both of them also admitted subscribing of their CRRP.483/02 5 signature in Ext.P1 mahazar but setting up a different version as to how they signed in that document. After going through their evidence with reference to the materials tendered, the learned Magistrate concluded that they are interested in the accused as all of them came from the same place and that they have turned hostile does not affect the merit of the prosecution case. The learned Sessions Judge concurred with the view taken by the learned Magistrate. I do not find any impropriety or illegality in that view concurrently taken by the two courts especially in the case where it is shown by the evidence of PWs.1 and 2, the excise officials that the accused possessed without any authority or permit 1.5 litres of illicit arrack in a plastic kannas at the time of place alleged by the prosecution. There is no rule that the evidence of an excise official or police official requires corroboration from independent source for its acceptance. As in the case of any other witness, the same yardstick has to be applied for evaluating their evidence. The learned Magistrate, who had the opportunity to watch the demeanour and deportment of the witnesses found their evidence reliable and trustworthy, which after re-evaluation, was concurred by the learned Sessions Judge. That is more than sufficient to establish the CRRP.483/02 6 prosecution case as to the seizure of the contraband from the possession of the accused as alleged. 6. The last question to be considered is whether the delay in production of the contraband before the court has vitiated the prosecution case against the accused. It seems, the question of delay was not canvassed before the learned Magistrate and no finding thereof was entered in the judgment rendered by him. In appeal against the conviction, that question being raised, the Sessions Judge brushed it aside holding that it was not raised before the trial Magistrate and, further, there is nothing on record to show that any prejudice having been caused to the accused by such delay. The accused had not made any suggestion to the excise officials PWs.1, 2 and 5 when they were examined that the sample was tampered with or manipulated was also taken note of by the Sessions Judge to conclude that the challenge raised on the ground of delay in production of sample is meritless. The question that emerges for consideration is whether the failure of the accused to raise a substantive plea on the question of delay in production of the sample before the court or in putting suggestive questions to the official witnesses, the CRRP.483/02 7 excise officials, as to tampering and manipulation of the sample on account of delay, absolve the prosecution from explaining the reason for the delay, and the court from going into that question scrutinizing the explanation, if any, offered as to its acceptability. Seizure of the contraband from the possession of the accused was on 1.2.1997. Ext.P2 crime and occurrence report over the seizure was produced before the court on 3.7.1997 with the charge sheet against the accused. Sample and also the residue were also admittedly produced on 3.7.1997, that is, nearly after five months from the date of seizure. Ext.P4 is the requisition slip submitted before the court for analysis of the sample. Ext.P5 the analysis report issued by the analyst would show sample was made available at his laboratory on 12.8.1997. The report is dated 10.12.1998 indicate that it reached the court one year after it was sent over for analysis. The delay taken for analysis after it was sent over to the Laboratory can be excused but the prosecution was bound to explain the delay in the production of the sample before the court. Repeatedly, this Court has highlighted in its judicial pronouncements in cases covered by the Abkari Act that forthwith production of sample collected from the contraband before the court has to be ensured (See CRRP.483/02 8 Sasidharan v. State of Kerala (2007 (1) KLT 720), Narayani v. Excise Inspector (2002 (3) KLT 725) and Narayana Vilichappada v. S.I. of Police and another (2007 (4) ILR 694)). Some of the provisions in the Excise Manual which of course have got no statutory force insist for production of the sample before the court without any delay. Delay in production of sample in the absence of sufficient cogent and convincing explanation is a material circumstance affecting the value of the prosecution case. Where there is inordinate delay in production of the sample even if it does not by itself indicate that the sample could have been tampered with or manipulated the court must be satisfied that the sample was kept secured with no chance of tampering. Who retained the possession of the sample when delay in production of the sample before the court had occurred also require to be considered. Delay in production of the sample and residue before the court is demonstrated by the records tendered by the prosecution and such delay is shown to be inordinate, and, thus inexcusable without proper explanation. Even if no plea is raised by the accused, the court has to look into that circumstance also. The plea on that count has not been raised by the accused does not indicate that he has not CRRP.483/02 9 suffered any prejudice by the inordinate delay in production of the sample before the court. Prosecution in the present case has not offered any explanation for the late production of the sample and residue before the court, that is, nearly five months after the seizure of the contraband. It has also not been shown as to who was in possession of the sample and residue till such materials were produced before the court. There is no convincing evidence that the samples were kept secured ensuring its safety leaving no chance for tampering and manipulation. It is only reasonable that during the period of five months, after the collection of the sample and its production, several abkari offences might have been detected and samples collected were stored in the same excise office, in which the sample in the present case was also kept. Such being the situation, it is totally unsafe to act upon such a sample produced before the court at a belated stage without offering any explanation that it was in safe custody and free from any tampering or manipulation. That being so, I find that it cannot be ruled out that no prejudice had been caused to the accused by the late production of the sample, and, his conviction cannot be sustained in view of the serious lapses of the prosecution in explaining the delay for the production of CRRP.483/02 10 the sample. In the result, the accused is to be given the benefit of doubt and conviction and sentence imposed against the accused are liable to be set aside. I do so. He is acquitted of the offence charged under Section 58 of the Abkari Act. Revision is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.483 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 11th June, 2009