IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 Crl.Rev.Pet.No. 591 of 2010() ----------------------------- CRA.9/2005 of SESSIONS COURT, MAYANAD, KALPETTA SC.236/2000 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONER(S): PETITIONER ------------------------------- CHANDRAN, S/O.KRISHNAN C.NO.7947, CENTRAL JAIL, KANNUR BY ADV. SRI.UNNI.K.K.(STATE BRIEF) RESPONDENT(S): ------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.591 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 20th day of October 2010 O R D E R This revision petition is preferred by the sole accused in S.C.No.236/2000 of the Court of Assistant Sessions Judge, Sulthanbatheri, who is undergoing imprisonment in pursuance to the judgment dated 30.9.2006 in the above case. 2. The case of the prosecution is that on 1.5.1998 at about 5 PM the accused was found in possession of 27 packets of Karnataka made arrack, each packet containing 100ml each. According to the prosecution, when PW1 was on patrol duty along with other Excise Officers and when they reached in front of the shop of one Panachikkunnel Sundaran Nambiar on Peechamkode-Kallodi Panchayath road they saw the accused coming from opposite direction Crl.R.P.No.591 of 2010 -: 2 :- with a plastic bag in his hand. According to prosecution on seeing the Excise party, the accused tried to run away but he was intercepted and the plastic bag which was holding by the accused was examined and then it revealed that 27 packets contained Karnataka made arrack. According to the prosecution the officers identified the liquid, which contained in each of the packet as illicit arrack and as per Ext.P2 arrest memo, the accused was arrested and drawn samples from the contraband article. On arrest of the accused Ext.P3 intimation of arrest served on the relatives of the accused and the 'thondy' articles were seized and taken into custody as per Ext.P1 mahazar and thereafter the accused as well as the 'thondy' articles produced in the Excise Range Office and accordingly Ext.P6 crime and occurrence report was prepared and the accused as well as the material objects were produced in the court. 3. After the investigation, a report was filed in Crime No.13/98 in the Mananthavady Excise Range, upon which Crl.R.P.No.591 of 2010 -: 3 :- cognizance was taken and C.P.No.23/2000 was instituted in the Court of Judicial First Class Magistrate, Mananthavadi. As per the proceedings dated 26.7.2000 in C.P.No.23/2000, the learned Magistrate committed the case to the Sessions Court, and then Session Case No.236/2000 was instituted and from there it was made over to the Court of Assistant Sessions Judge, Sulthanbatheri for trial and disposal. 4. On the appearance of the accused, a formal charge was framed under Sec.55(a) of the Abkari Act which read over and explained to the accused and he denied the same. Consequently the trial was further proceeded during which Pws.1 to 5 were examined from the side of the prosecution and produced Exts.P1 to P8. MO1 to 3 materials were identified as material objects. After the prosecution evidence the accused was examined under Sec.313 of Cr.P.C. and when the incriminating circumstances and evidences which emerged during the prosecution evidence, were to the accused, he denied the Crl.R.P.No.591 of 2010 -: 4 :- same. Finally, the trial court by its judgment dated 13.12.2004 in S.C.No.236/2000 has found that the accused is guilty under Sec.55(a) of the Abkari Act and accordingly the accused is sentenced to undergo rigorous imprisonment for two years and also sentenced him to pay a fine of Rs.1,00,000/- and the default sentence is fixed as rigorous imprisonment for six months. 5. Aggrieved by the order of conviction and sentence and challenging the verdict of the trial court, the accused preferred an appeal and by judgment dated 30.9.2006 in Crl.A.No.9/2005, the Sessions Court,Wayanad disposed the appeal, confirming the conviction of the accused and the substantive sentence ordered by the trial court is reduced to one year rigorous imprisonment and the sentence of fine and default sentence ordered by the trial court are confirmed. 6. In pursuance to the judgments of the court below the accused was removed to the Central Prison, Kannur on Crl.R.P.No.591 of 2010 -: 5 :- 29.11.2009 and thus, while he is undergoing the imprisonment, he preferred this revision petition from the jail. Though the revision petition was belated, this Court has condoned the delay and the revision petition was admitted and Adv.K.K.Unni was appointed as State Brief to prosecute the revision petition for and on behalf of the revision petitioner/accused. 7. Thus, I have heard Sri.K.K.Unni, the learned counsel appearing for the revision petitioner as well as the learned Public Prosecutor. 8. The counsel for the revision petitioner vehemently argued that the prosecution agency has falsely implicated the revision petitioner in an Abkari case and the revision petitioner is totally innocent of all the allegation levelled against him. The learned counsel, in support of the above submission, pointed out that there is unexplained inordinate delay in reaching the contraband article, which allegedly seized from the possession of the revision petitioner and Crl.R.P.No.591 of 2010 -: 6 :- also Ext.P7 property list and occurrence report, in the court. It is also the submission of the learned counsel that in the present case, the prosecution has miserably failed to establish that the accused was found in possession of any contraband article since the prosecution has not produced any documentary evidence to prove that the articles allegedly seized from the possession of the accused is illicit arrack. In support of the above submission the learned counsel placed reliance on the decision of this court in Narayani v. Excise Inspector [2002(3) KLT 725] and Joseph v. State of Kerala [2009(4) KHC 537]. 9. Stoutly opposing the arguments advanced by the learned counsel for the revision petitioner, the learned Public Prosecutor submits that no prejudice is caused to the revision petitioner/accused even though some minor delay was occurred in producing the contraband article in the court especially when the accused was produced in the court on the next day of his arrest and particularly when Crl.R.P.No.591 of 2010 -: 7 :- contemporary documents like Exts.P6 and P8 are produced in the court on the date of production of the accused himself before the court. It is also the submission of the learned Public Prosecutor that though Ext.P5 is a photocopy of the original report, the same contain the seal and signature of the chemical analysis staff and also shown the details of the crime and merely for non-production of the original is not a ground to acquit the accused. 10. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner and the learned Public Prosecutor and carefully perused the materials and evidence on record. 11. The prosecution case, to establish the case, they have examined Pws.1 to 5 and also produced Exts.P1 to P8 documents. PW1 is the Preventive Officer through him Ext.P1 mahazar, Ext.P2 arrest memo, Ext.P3 notice to the relatives of the accused regarding the arrest and MO1 to 3 are marked. PW3 is also another Preventive Officer who Crl.R.P.No.591 of 2010 -: 8 :- accompanied PW1 at the time of seizure. PW4 is the Excise Inspector through him Ext.P5 photocopy of the chemical analysis report was marked. PW4 is the witness who prepared Ext.P4 scene mahazar. PW5 is the Excise Range Officer, Sulthanbatheri. According to PW5 he prepared Ext.P6 crime and occurrence report, Ext.P7 property list and Ext.P8 forwarding note. Thus, according to PW5 after preparation of the above documents he entrusted the accused as well as the contraband articles with PW1 for producing in the court. Going by the evidence of prosecution, regarding the seizure of the contraband articles and arrest of the accused, the evidence of Pws.1, 3, 4 etc. are in fully support of the prosecution case. But, though PW2 an independent witness was sited and examined by the prosecution to prove the seizure and arrest, the said sole independent witness turned hostile. As such, to substantiate the prosecution case absolutely there is no independent evidence. There is no rule that the Crl.R.P.No.591 of 2010 -: 9 :- prosecution case based upon the evidence of official witness cannot be accepted unless the same are corroborated by independent evidence. In this juncture, it is relevant to note that the specific plea taken by the accused is that he was falsely implicated in the case since he had made a complaint against the Excise official. 12. Thus, on analysis of the prosecution evidence and appreciation of the same it can be seen that though PW1 has deposed before the court that he had produced the accused as well as the contraband articles before PW5, PW5 says that the accused as well as the contraband articles were entrusted with PW1 for the purpose of producing the Court. That was on 2.5.1998. But as per the court records Ext.P7 property list and the material objects reached in the court only on 6.5.1998. No explanation is forthcoming from the part of the prosecution for the delay that occurred in producing the contraband articles in the court. It is also very strange to note that there is no Crl.R.P.No.591 of 2010 -: 10 :- evidence as to who was the custodian of the contraband articles after the same entrusted with the PW1 by PW5 till the articles reached in the court. In this juncture, it is also relevant to note that the prosecution has miserably failed to produce the original of Ext.P5 chemical analysis report. Ext.P5 is only the photocopy of the chemical analysis report. No petition is seen filed for accepting the photocopy of the chemical analysis report stating the reason for the same. It is also relevant to note that there is no report or any material to show that either the committal court or the trial court has received the original of Ext.P5. It is pertinent to note that though the staff of the court cited and shown as a witness he was not examined and as such the prosecution has no explanation as to why the original of the chemical analysis report was not produced in the court. Above discrepancies of the prosecution case and evidence and regarding the inordinate delay in producing the contraband articles, are examined in the light of the decisions reported Crl.R.P.No.591 of 2010 -: 11 :- in 2009(4) KHC 537 and 2002(3) KLT 725, it cannot be said that Ext.P5 report is with respect to the contraband articles which allegedly seized from the possession of the accused. In 2009(4) KHC 537 this Court has held that in the absence of any explanation regarding the inordinate delay in producing the properties before the court and in the absence of any materials to show that the properties including the samples reached in the court in time it cannot be held that prosecution established the case beyond reasonable doubt. In the present case as I indicated earlier absolutely there is no evidence or materials as to who was the custodian of the contraband articles which entrusted with PW1 by PW5 after the preparation of Exts.P6 and P8. So also there is no evidence with respect to the place where the contraband articles was kept. Therefore, according to me the prosecution has miserably failed to establish the allegation against the accused beyond reasonable doubt and certainly the accused is entitled to get the benefit of doubt. Crl.R.P.No.591 of 2010 -: 12 :- Therefore, I am unable to approve the conviction and sentence recorded by the trial court as well as the lower appellate court. In the result, this revision petition is allowed setting aside the judgments of the court below and acquitting the revision petitioner of all the charges levelled against him and he is set at liberty. As the revision petitioner is undergoing imprisonment in pursuance to the judgments which now set aside and acquitted, he is entitled to get released from the jail forthwith if he is not required in any other case. The Registry is directed to forward the gist of this order to the Superintendent of Central Prison, Kannur for appropriate action. V.K.MOHANAN, JUDGE. Jvt