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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Unnikrishnan Nair S/o. Achuthan Nair – Appellant
Versus
State Of Kerala - Respondent
Crl.Rev.Pet.No.759 of 2010
Decided on : 01-06-2020
The Abkari Act, 1077- Section 8(1) and 8(2) - In order to establish the prosecution case against the accused, the prosecution has to prove that the very same sample drawn from the liquid which was seized from the possession of the accused ultimately reached the hands of the chemical examiner in a tamper proof condition.
• Identification of can seized from the accused before the court by the detecting officers, who were testifying before the court more than six years after the occurrence, without any marks of identification on it, as the very same can seized from the possession of the accused, cannot be accepted as reliable and trustworthy.
Statement of facts:
The revision petitioner is the accused in the case S.C No.539/2007 on the file of the Court of the Assistant Sessions Judge, Chengannur. Concurrent verdicts of guilty and conviction recorded against the petitioner under Section 8(1) read with 8(2) of the Abkari Act, 1077 are assailed in this revision petition.
Finding of the Court:
Identification of the seized can before the court more than six years after the occurrence, without any marks of identification on it, as the very same can seized from the possession of the accused, cannot be accepted as reliable and trustworthy. There is no evidence to find that the very same sample of liquid was forwarded for chemical analysis. This is for the reason that copy of the forwarding note, which should have been prepared for sending the sample to the laboratory, is not tendered in evidence and marked.
Result: Revision petition is allowed.
ORDER :
The revision petitioner is the accused in the case S.C No.539/2007 on the file of the Court of the Assistant Sessions Judge, Chengannur.
2. Concurrent verdicts of guilty and conviction recorded against the petitioner under Section 8(1) read with 8(2) of the Abkari Act, 1077 are assailed in this revision petition.
3. The prosecution case is that, on 18.07.2002, at about 11:45 hours, at the public road in front of the Orthodox Church at the place Thottumugham, PW1 Preventive Officer found the petitioner having in his possession MO1 can containing four litres of arrack.
4. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The petitioner pleaded not guilty and claimed to be tried.
5. The prosecution examined PW1 to PW5 and marked Exts.P1 to P7 documents and material object MO1. No evidence was adduced by the petitioner/accused.
6. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of four months and also to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo simple imprisonment for a period of three months.
7. The petitioner filed Crl.A.No.116/2009 challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal.
8. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the petitioner in this revision petition.
9. Heard. Perused the records.
10. PW1 is the Preventive Officer who detected the offence. PW4 is the excise guard who was in the excise party led by PW1. They gave evidence regarding the occurrence in detail.
11. The evidence of PW1 and PW4 would show that the excise party apprehended the petitioner and found in his possession a can containing some liquid. The fact that the independent witness, who was examined as PW2, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW1 and PW4 regarding the seizure of a can containing liquid from the possession of the petitioner as per Ext.P1 mahazar.
12. PW1 and PW4 identified MO1 in the court as the can containing liquid seized from the possession of the petitioner/accused. Their evidence in that regard lacks credibility. There is a specific recital in Ext.P1 mahazar that PW1 sealed the can which was seized from the accused and that he affixed label on it which contained his signature and also the signature of the witnesses and the accused. The can identified as MO1 by PW1 and PW4 in the court had no seal or label on it. Every such can would look alike or similar. The occurrence was on 18.07.2002. Final report in the case was filed only on 23.01.2007. PW1 gave evidence before the court on 28.01.2009 and PW4 gave evidence on 30.01.2009. Identification of the can before the court by PW1 and PW4, who were testifying before the court more than six years after the occurrence, without any marks of identification on it, as the very same can seized from the possession of the accused, cannot be accepted as reliable and trustworthy.
13. It is quite probable and natural that the seal and the labels put on the can may be lost or effaced or damaged during its storage in the court or the excise office for a long period. However, in the instant case, there are circumstances to show that the can containing the liquid which was seized from the possession of the accused was not the can which was produced before the court. As noticed earlier, there is a specific recital in Ext.P1 mahazar that PW1 sealed the can which was seized from the accused and that he affixed label bearing his signature and also the signature of the witnesses and the accused on it. PW1 gave evidence also to that effect. He
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