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2023 Supreme(Online)(KER) 41322
HIGH COURT OF KERALA
MRS. SOPHY THOMAS, J
ANDIKUTTY – Appellant
Versus
STATE OF KERALA – Respondent
CRIMINAL REVISION PETITION NO.560 OF 2009 | S.C NO. 482 OF 2006
For the Appellants/Petitioners: SRI.T.R.HARIKUMAR
For the Respondents: SHRI RENJITH GEORGE, SR.PUBLIC PROSECUTOR
Procedural violations in the seizure and destruction of evidence under the Abkari Act can lead to the vitiation of the prosecution case, affecting the validity of convictions.
Headnote:(A) Abkari Act - Section 8(2) and Section 53A - Conviction for distilling illicit arrack - The absence of a seizure mahazar at the time of detection and failure to follow procedures for destruction of contraband under Section 53A is fatal to the prosecution case - The trial and appellate courts failed to recognize these crucial procedural shortcomings. (Paras 12, 13, and 14)
(B) Revision Petition - The legality and correctness of conviction and sentence are examined - If mandatory procedures prescribed by law are not followed, it can result in vitiation of the prosecution case. (Paras 10 and 11)
Facts of the case:
The revision petitioner was convicted for possessing and distilling illicit arrack after a police raid on his premises where contraband was allegedly discovered. The trial court sentenced him to one year in prison with a fine.
Findings of Court:
The conviction was found to be flawed due to procedural violations regarding seizure and disposal of evidence.
Issues: Whether proper procedures were observed during the seizure and disposal of evidence as per the relevant sections of the Abkari Act.
Ratio Decidendi: The court ruled that failure to prepare a seizure mahazar and not complying with the mandatory procedures under Section 53A rendered the conviction unsustainable.
Result: Revision petition allowed; conviction set aside and accused acquitted.
| Table of Content |
|---|
| 1. overview of the case and prosecution evidence. (Para 1 , 2 , 3 , 4 , 5) |
| 2. conclusion of the court's analysis and decision. (Para 6 , 7 , 14) |
| 3. argument regarding failure to follow seizure procedures. (Para 8 , 9 , 10) |
| 4. importance of section 53a compliance in prosecutions. (Para 11 , 12 , 13) |
O R D E R
This revision is at the instance of the accused in S.C No.
482 of 2006 on the file of Additional Assistant Sessions Judge, Kozhikode, assailing the judgment in Crl.Appeal No.560 of 2009 on the file of Additional District and Sessions Judge Fast Track (Adhoc-I), Kozhikode, which upheld his conviction and sentence under Section 8 (2) of the Abkari Act .
2. The prosecution case is that on 02.09.2005, on getting reliable information that the revision petitioner was distilling illicit arrack in his house, PW1, Sub Inspector of Police, Kunnamangalam and Police party proceeded to his house after sending search memo to the court, and on search, they found a 5 litre can containing 2.5 litres of arrack in his bedroom beneath the cot, and four plastic pots containing 30 litres of wash were also found hidden behind the house. The revision petitioner was arrested on the spot at 5.45 pm, and sample was taken from the illicit arrack as well as from the wash. It was sealed and the residue of wash was destroyed. The revision petitioner along with the sample seized and the documents prepared were produced before Kunnamanagalam Police Station, and a case was registered against the revision petitioner. PW8 investigated the case and laid charge sheet against the revision petitioner under Sections 55 (a) and 55(g) of the Abkari Act .
3. On appearance of revision petitioner before the trial court, charge was framed under Sections 55 (a) and 55(g) of the Abkari Act , read over and explained, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 8, marked Exts.P1 to P8 and identified MO1, to prove its case.
4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 Cr.PC and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced.
5. On hearing the rival contentions from either side, and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Section 8 (2) of the Abkari Act , and he was convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a further period of three months. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.560 of 2009, and the appellate court dismissed the appeal, finding that there was no reason for interference, against which he has preferred this revision petition.
6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner, by the trial court as well as the appellate court.
7. Heard learned counsel for the revision petitioner and learned Public Prosecutor.
8. Learned counsel for the revision petitioner submitted that, the conviction and sentence of the revision petitioner will not stand in the eye of law, as there were sufficient grounds to disbelieve the prosecution case. First of all, he pointed out that, no seizure mahazar was prepared in this case, which is a primary document to prove the seizure. Seizure mahazar is to be prepared at the time of detection itself, at the spot of detection. Obviously, no reason whatsoever has been shown by the prosecution, as to why the seizure mahazar was not prepared at the scene of occurrence, which should have been the most important document to substantiate their case. The prosecution was bound to establish the link evidence that the contraband was seized from the possession of the revision petitioner, and the sample which reached the chemical examiner’s lab was the very same sample taken from
