IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 Crl.Rev.Pet.No. 1346 of 2003() ------------------------------ CRA.339/1998 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CC.185/1996 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): ACCUSED: ----------------------------- CHALIL GOPI, S/O. KRISHNAN, AGED 46 YEARS, PUTHOOR AMSOM, KAIVELIKKAL DESOM, P.O. PUTHOOR, (VIA) THALASSERY, KANNUR DIST. BY ADV. SRI.P.P.RAMACHANDRAN SRI.K.V.PAVITHRAN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTORSRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.NO. 5677/03 IN CRRP 1346/03 DISMISSED 31.5.10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1346 OF 2003 --------------------------------------------- Dated 31st May, 2010 O R D E R Petitioner, the accused in C.C.185/1996 on the file of Additional Chief Judicial Magistrate, Thalassery was convicted and sentenced to simple imprisonment for six months and a fine of Rs.25,000/- and in default simple imprisonment for six months for the offence under Section 55(a) of Abkari Act. Petitioner challenged the conviction and sentence before Sessions court, Thalassery in Crl.A.339/1998. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for CRRP 1346/03 2 the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that though Ext.P3 report of chemical analysis was relied on by the courts below to find that petitioner was in possession of illicit arrack, courts below should not have relied on Ext.P3 in the absence of evidence to prove that the said certificate was obtained on examination of the sample collected from the contraband article seized from the petitioner. It was pointed out that though PW1 the detecting officer was examined, he did not give any evidence as to the production of MO.1 can or the sample in court and there is no evidence to prove when exactly the sample was produced in court or when it was forwarded for chemical analysis and therefore, courts below should not CRRP 1346/03 3 have convicted the petitioner relying on Ext.P3. Learned counsel would argue that even if the property list and forwarding note available among the records were perused, they will not throw any light on when exactly MO.1 sample was received in court and was forwarded and in such circumstances, petitioner is at least entitled to the benefit of reasonable doubt. Learned counsel further argued that in any case, conviction for the offence under Section 55(a) of Abkari Act will not lie as there is no allegation that petitioner was found in possession of illicit arrack in the course of import or export. Reliance was placed on the decision of this court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Mohanan v. State of Kerala (2007 (1) KLT 845). 4. Learned Public Prosecutor submitted CRRP 1346/03 4 that neither before the trial court nor before the appellate court the question of production of MO.1 or the sample or validity of Ext.P3 report was challenged and property list accepted by the learned Magistrate shows that on 2/11/1995 itself MO.1 and the sample were produced in court and records show that when the final report was submitted it was returned , as there is no requisition to send the sample and the requisition was submitted before the court on 12/4/1996 as seen from the court seal and in such circumstances, based on the lack of such evidence the conviction cannot be quashed. Learned Public Prosecutor pointed out that both the courts have properly appreciated the evidence and there is no reason to interfere with the conviction or the sentence. CRRP 1346/03 5 5. Prosecution case is that on 1/11/1995 at about 7.45 a.m while PW1 the Excise Inspector, Koothuparamba Excise Range along with PW2 Excise Guard were on patrol duty, they found the petitioner standing on the side of the road holding MO.1 can and getting suspicious, petitioner was apprehended. On opening the can it was found that it contained about four liters of illicit arrack ascertained by its smell and taste. Petitioner was arrested. Mo.1 can which contained illicit arrack was seized. The sample was taken in a 180 ml. bottle. The sample and MO.1 were sealed in the presence of the petitioner and Pws.3 and 4 the attesting witnesses. After the sample was sent for chemical analysis from court on requisition submitted. Ext.P3 report of chemical analysis was received on examination CRRP 1346/03 6 of the sample. 6. Argument of the learned counsel is that PW1 did not depose that sample taken or MO.1 can were produced in court and therefore, there is no evidence. It is also argued that property list and the forwarding note were also not marked and in such circumstances, there is no evidence when the sample was produced in court and when it was sent and and even if, the records available, are perused they will not show when the sample and MO.1 were received in court and at best, it would show that it was sent for chemical analysis in 1996. True, when PW1 was examined, he did not depose specifically that MO.1 can containing illicit arrack seized or the sample were produced in court. But Ext.P3 was marked as the report of chemical analysis, received on examination CRRP 1346/03 7 of the sample from the laboratory. Ext.P3 shows that the said report was submitted after analysis of the sample sent from court, as per R.P.29/1995 dated 12/4/1996. Though property list and forwarding note were marked, I have no hesitation to hold that those records could be looked into, especially when petitioner did not challenge these aspects before the trial court or the appellate court. Property list shows as it was prepared on 1/11/1995 by PW1 Excise Inspector on the date of seizure itself. On the reverse side of property list it is noted that it was received and entered as R.P.29/1995. Forwarding note accompanying the property list shows that it was received in court on 12/4/1996. Final report shows that was submitted before the court on 12/2/1996 and was returned, as there was no requisition for CRRP 1346/03 8 sending the sample for chemical analysis. It further shows that final report was re- submitted on 11/4/1996, with the requisition to send the sample for chemical analysis. Court seal in the final report shows that it was received in court on 12/4/1996. Requisition to forward the sample to chemical analysis sent along with property list shows the court seal dated 12/4/1996. Therefore, it is absolutely clear that Ext.P3 report was prepared after examination of the sample which was produced in court and received as R.P.29/1995 as per the property list prepared on 1/11/1995 and received in court on 2/11/1995. It was forwarded on 12/4/1996 pursuant to the requisition to forward the sample, as clear from Ext.P3 report. In the light of these materials and inherent evidence, I have no CRRP 1346/03 9 hesitation to hold Ext.P3 report was submitted, on chemical analysis of the sample produced in court by PW1 after its seizure from the petitioner on 1/11/1995. 7. Though seizure was challenged, learned Magistrate and learned Sessions Judge appreciated the evidence of Pws.1 and 2 in the light of Ext.P3 the contemporaneous record prepared and evidence of Pws.3 and 4 show that though they did not support the prosecution case in toto, on their evidence the seizure cannot be disbelieved. Learned Magistrate accepted the evidence after proper appreciation. Learned Sessions Judge also accepted it. I find no reason to interfere with the appreciation of evidence or the finding that MO.1 was seized from the petitioner on 1/11/1995 and sample was prepared CRRP 1346/03 10 as deposed by PW1 and corroborated by the evidence of PW2. 8. Then the question is whether identity of the sample produced in court is established. Ext.P1 seizure mahazar itself show that after sealing MO.1 and the sample petitioner was asked to affix his seal and he declined stating that the seal affixed is sufficient. PW1 from the box re-iterated that version. It was not challenged in cross examination. Therefore, evidence establishes that PW1 has taken sample from MO.1 can seized in the presence of the petitioner and sealed it. Ext.P3 report is based on chemical analysis of the sample so taken. Ext.P2 establishes that sample is illicit arrack. Therefore, prosecution has conclusively establish that petitioner has been in possession of illicit CRRP 1346/03 11 arrack on 1/11/1995. 9. Then the question is what is the offence attracted. Though petitioner was convicted for the offence under Section 55(a) of Abkari Act, as held by the Division Bench of this court in Surendran v. Excise Inspector (2004 (1) KLT 404) and Mohanan v. State of Kerala (2007 (1) KLT 845), conviction for the offence under Section 55(a) of Abkari Act will not lie as prosecution has no case that petitioner was in possession of the contraband article, either in the course of import or export. He could only be convicted for the offence under Section 58 of Abkari Act. Conviction for the offence under Section 55(a) is therefore, not sustainable. But petitioner is to be convicted for the offence under Section 58 of Abkari Act. CRRP 1346/03 12 10. Then the question is regarding the sentence. As Section 58 then stood, sentence provided was fine which shall not be less than rupees fifteen thousand and imprisonment for a term which may extend to one year. Though there was minimum fine of rupees fifteen thousand provided, there was no minimum substantive sentence provided. Considering the fact that the incident was in 1995 and petitioner was not involved in any other abkari offences, interest of justice will be met, if petitioner is sentenced to simple imprisonment for one month and a fine of rupees fifteen thousand and in default simple imprisonment for one month. Revision is allowed in part. Conviction of the petitioner for the offence under Section 55(a) of Abkari Act and sentence awarded are CRRP 1346/03 13 set aside. Petitioner is convicted for the offence under Section 58 of Kerala Abkari Act and sentenced to simple imprisonment for one month and fine of Rs.15,000/- (Rupees Fifteen thousand only) and in default simple imprisonment for one month. Petitioner is entitled to get set off, as provided under Section 428 of Code of Criminal Procedure. Additional Chief Judicial Magistrate, Thalssery is directed to execute the sentence. Petitioner is directed to appear before the learned Magistrate on 1/7/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.