IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 Crl.Rev.Pet.No. 1387 of 2003() ------------------------------ CRA.89/1998 of 1ST ADDL.SESSIONS COURT, PATHANAMTHITTA CC.379/1992 of JUDL.MAGISTRATE OF FIRST CLASS COURT II- PATHANAMTHITTA .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- KUNJUMON,S/O. KANDAN, OTTAKAVANAL HOUSE, MANGANAM MURI, KONNI VILLAGE. BY ADVS. SRI.M.NARENDRA KUMAR, SRI.A.SALISH. RESPONDENT(S): RESPONDENT:COMPLAINANT: ------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.5913/2003 IN CRRP.NO.1387/2003 DISMISSED 23/07/2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ======================== Crl.APPEAL. No.1387 OF 2003 ==================== Dated this the 23rd day of July, 2010. JUDGMENT Revision petitioner was convicted and sentenced to simple imprisonment for 6 months and fine of Rs.1,000/- for the offence under Section 55(g) of Abkari Act by Judicial Magistrate of the First Class-II, Pathanamthitta in C.C.No.379 of 1992. Though, appellant challenged the conviction and sentence before Sessions Court, Pathanamthitta in Criminal Appeal.No.89 of 1998, the learned 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 the petitioner and the learned Public Prosecutor were heard. 3. The argument of the learned counsel is that as per Ext.P1 seizure mahazar and the evidence of PW1, the contraband articles were seized from the house of petitioner on 9.7.1991 and sample of wash was prepared in 750 ml Crl.APPEAL. No.1387 OF 2003 2 bottle and it was sealed Ext.P3 report shows that it contains 7.28% volume of ethyl alcohol and therefore it is wash for distillation of illicit arrack. But Ext.P3 shows that the sample received in the Laboratory is a 300ml bottle and if that be so, it cannot be the sample of 750ml prepared as per Ext.P1 and produced before the court and therefore on that sole ground the conviction is illegal. The learned counsel pointed out that Ext.P2 property list shows that MO1 aluminum vessel and 750 ml sample bottle were produced before the learned Magistrate only on 13.11.1991, and there is no evidence as to who has been in custody of the sample before it was produced before the court on 13.11.1991 and therefore chances of tampering cannot be ruled out and even if it is taken that 750ml sample bottle was produced in court, when there is no evidence show as to how a 300ml of sample happened to be send the laboratory for chemical analysis, based on Ext.P2, petitioner cannot be convicted. Reliance was placed on the following decisions of this Court. United Enterprises V.Sales Tax Officer, Chalakudy Crl.APPEAL. No.1387 OF 2003 3 (2003 (1) KLT 725), Alex V. State of Kerala (2003(1) KLT SN-9),Sachidanandhan V.State of Kerala (2006 (2) KLD 744) and Vikraman V.State of Kerala, (2007 (1) KLT 1010). 4. The learned Public Prosecutor submitted that the learned Magistrate and learned Sessions Judge appreciated the evidence in a proper perspective and there is no reason to interfere with the conviction. 5. Even if the evidence of PWs. 1 and 5 the Excise Inspector and the Excise Guard is accepted and it is to be found that, MO1 aluminum vessel bottle contained a liquid which was seized, their evidence with Ext.P1 mahazar shows that out of the liquid found in the aluminum vessel, sample in a 750ml bottle was prepared and it was sealed. Therefore what can be produced before the court is only a 750 ml sealed bottle. Ext.P3 also shows that what was produced before the court is the 750 ml bottle. Ext.P3 the report of chemical analysis shows that what was received in the laboratory is a sealed bottle containing 300 ml liquid. Neither the evidence of PW1 nor PW4 explains how a 750 Crl.APPEAL. No.1387 OF 2003 4 ml sealed bottle, happened to be changed into a 300 ml bottle which was received at the Laboratory. There is no evidence to show that a request was made to the court to prepare a sample out of the sealed sample bottle produced in court, or any officer of the court prepared such a sample and that sample was send to the laboratory. In the absence of the said evidence, it cannot be found that the bottle which was examined in the Laboratory is the sample of the liquid which was found in the aluminum vessel seized under Ext.P1. If that be so, based on Ext.P3 report, petitioner cannot be convicted. 6. Added to this, the evidence of PW1 corroborated by that of PW5 and Ext.P1 mahazar only shows that a 750 ml bottle prepared from the liquid found in MO1 aluminum vessel was taken and sealed on 9.7.1991. Ext.P2 shows that it reached the court only on 13.11.1991. There is no explanation for the delay in production of the contraband article or who has been in custody of the article from the date of its seizure till its production and whether it was in proper custody. No evidence was let in on those aspects. It Crl.APPEAL. No.1387 OF 2003 5 is fatal. 6. As held by this court Dominic V.State of Kerala, (1989 (1) KLT 601) as mandated by the Excise Manual the factum of seizure of contraband article should be reported to the court within 12 hours and the report should reach the court along with the seized article within 24 hours and a request has to be submitted to the court to forward the sample immediately as provided under paragraph 77 of the Excise Manual. In Ext.P1 mahazar which should have reached the court immediately as provided under Section 100(3) of Code of Criminal Procedure and Excise Manual, reached the court only on 13.11.1991. So also the sample prepared by PW1 also reached the court on 13.11.1991. There is absolutely no explanation for the delay in producing the same, if not on the same day, or at least on the next day. At any rate the inordinate delay of about four months is fatal. When safe custody during that period is not proved. In such circumstances as held by this Court in Narayani V. Excise Inspector, (2002 (3) KLT 725), when the delay is not explained and there is no evidence as Crl.APPEAL. No.1387 OF 2003 6 to who has been in custody of the contraband article from 9.7.1991 to 13.11.1991 and it was in safe custody, based on the report of that sample, petitioner cannot be convicted. Added to this there is no evidence to prove that sample examined at the laboratory is the sample which was seized from the house of the petitioner as stated in Ext.P1. Therefore conviction of the petitioner for the offence under Section 55(g) of Abkari Act is illegal. It can only be set aside. Revision is allowed. Conviction of petitioner in C.C.No.379 of 1992 on the file of Judicial First Class Magistrate-II ,Pathanamthitta as confirmed in Criminal Appeal No.89 of 1998 is set aside. Petitioner is found not guilty of the offence. He is acquitted. M.SASIDHARAN NAMBIAR, JUDGE. mns