Jinto S/o Sebastian vs State of Kerala

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 835

IN THE HIGH COURT OF KERALA AT ERNAKULAM
SOPHY THOMAS, J.
Jinto S/o Sebastian – Petitioner
Versus
State of Kerala – Respondent
Crl. Rev. Pet. No. 1041 of 2016
Decided On : 13-11-2023

Advocates:
Advocate Appeared:
For the Petitioners: Paul Mathew Perumpillil, Prasun S.
For the Respondent: Nima Jacob.

Headnote:Abkari Act - Conviction under Sections 8(1) and 8(2) - The court discussed the legality, propriety, and correctness of the concurrent findings of the trial court and appellate court convicting the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. The defense argued that material defects in the prosecution's case, such as absence of specimen impression of the seal in the seizure mahazar, absence of forwarding note, delay in investigation, and lack of evidence proving dominion or control over the contraband by the accused, raised doubts about the genuineness of the prosecution's case.
Fact of the Case:
The revision petitioner was found in possession of illicit arrack at his residential house. He was convicted under Sections 8(1) and 8(2) of the Abkari Act.
Finding of the Court:
The court found that there were vital aspects pointing against the genuineness of the prosecution's case. As a result, it set aside the conviction and sentence imposed on the revision petitioner.
Issues:
Legality, propriety, and correctness of convicting and sentencing under Sections 8(1) and 8(2) of the Abkari Act.
Ratio Decidendi:
The absence of specimen impression of seal in seizure mahazar, absence of forwarding note, delay in investigation, and lack of evidence proving dominion or control over contraband raised doubts about genuineness.
Final Decision:
The impugned judgments were set aside. The revision petitioner was found not guilty and acquitted under Section 235(1) of Cr.P.C. His bail bond was cancelled, and he was set at liberty forthwith.

ORDER :

1. This revision is at the instance of the accused in S.C. No. 452 of 2012 on the file of Additional Assistant Sessions Judge-I, North Paravur, assailing the judgment in Crl. Appeal No. 21 of 2014 on the file of Additional District and Sessions Judge, North Paravur, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act.

2. The prosecution case is that, on 17.06.2006 at 12.00 noon, the revision petitioner was found in possession of 7 litres of illicit arrack in a 10 litre can, at his residential house. PW-8-the Circle Inspector of Excise Range, Paravur, and excise party detected the offence while on patrol duty, on getting secret information that illicit arrack had been kept in the house of the revision petitioner. PW-9 investigated the case and laid charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act.

3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which he pleaded not guilty and claimed to be tried. PWs. 1 to 9 were examined, Exts.P1 to P15 were marked and MO1 was identified from the side of prosecution, to prove its case.

4. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced.

5. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1 lakh, and in default to undergo simple imprisonment for three months.

6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No. 21 of 2014. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision petition.

7. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act.

8. Heard learned counsel for the revision petitioner and learned Public Prosecutor.

9. The learned Public Prosecutor submitted that, the revision petitioner was caught red handed along with the can containing 7 litres of illicit arrack, from the northern room of his residential house. PW-8 the detecting officer and official witnesses in the patrol party who were examined as PW-1 and PW-2, gave testimony in tune with the prosecution case. The sample taken from the contraband seized from the possession of the revision petitioner was sent for chemical analysis, and presence of ethyl alcohol was reported by the analyst. So, according to the learned Public Prosecutor, the prosecution proved its case beyond reasonable doubt, and so, there is nothing to interfere with the conviction and sentence imposed by the trial court as well as the appellate court.

10. Learned counsel for the revision petitioner pointed out the material defects, which according to him, will cut at the root of the prosecution case. He would say that, in Ext.P1 seizure mahazar, there is no specimen impression of the seal. The specimen impression of the seal affixed in the seizure mahazar prepared at the scene of occurrence, is an important factor to verify the genuineness of the sample which reached the lab. The prosecution is bound to establish that the sample taken from the contraband allegedly seized from the possession of the accused/revision petitioner at the scene of occurrence, is the very same sample which was produced before the court, and later before the chemical ex