Delay in evidence presentation undermines prosecution credibility.

ORDER

This criminal revision petition is preferred impugning the judgment of the learned Additional Sessions Judge, Adhoc-1, Thalassery in Crl. A. No.

183 of 2007.

2. The revision petitioner herein is the sole accused in Crime No.7/1999 of Sreekandapuram Excise Range registered for the offence punishable under Section 58 of the Abkari Act .

3. The prosecution case is that, on 21.08.1999 at 7.30 a.m., the accused was found in possession of 3 litres of illicit arrack in a plastic can.

4. The trial court convicted and sentenced the accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months.

5. The appellate court confirmed the sentence.

6. Impugning the judgment of the learned Additional Sessions Judge, Adhoc-1, Thalassery, the accused preferred this revision.

7. Before the trial court, PWs.1 to 4 were examined, Exts.P1 to P7 were marked and MO-1 was identified. PW1 is the Assistant Excise Inspector of the Excise Range Office, Sreekandapuram, and party, while conducting patrol duty detected the case. PW2 is the attestor to Ext.P3 mahazar, who turned hostile to the prosecution. PW3 is the Excise Inspector, Alakkode, who conducted the investigation and PW4 is the another Excise Inspector who completed the investigation.

8. After the committal proceedings, the learned Sessions Judge made over the case to Assistant Sessions Court, Thalassery Division at Payyannur. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure.

9. I have heard Sri. V.A. Satheesh, the learned counsel appearing for the revision petitioner and Adv. Maya M.N., the learned Government Pleader.

10. The learned Government Pleader submitted that the impugned order is legally sustainable and no interference, whatsoever, is warranted in this matter. She further submitted that the prosecution has succeeded in alleging and proving the charge against the revision petitioner.

11. Per contra, the learned counsel for the revision petitioner submitted that the impugned order is illegal, irregular and improper. Both the trial court and the appellate court had failed to note the illegalities and improprieties in this case.

12. The learned counsel for the revision petitioner would submit that the material object (MO-1 can) was produced before the jurisdictional Magistrate only on 31.08.1999. The said delay is not properly explained by the prosecution.

13. The learned vounsel would further submit that PW2, who is the witness to seizure mahazar, turned hostile to the prosecution and no independent witness were examined to prove the prosecution case. There are material contradictions and discrepancies in oral evidence of PW1 and the contents of Exts.P2 and 3 regarding the place of occurrence. The investigation was completed and charge sheet was filed after the lapse of around 8 months. The learned counsel for the revision petitioner would submit that that the penal statutes are to be interpreted strictly within the four corners of the statute. Suspicion, however strong it may be, it would not be a substitute for proof.

Therefore, the impugned judgment is based on surmises and conjectures.

14. Before further discussion it would be apposite to refer to the relevant dicta of this Court.

15. In Chandran and Another v. State of Kerala and Another [2022 KHC OnLine 3500] , this Court held that when there is delay, however short it may be, in producing the seized contraband substance and the sample drawn from it at the Court, the prosecution has not only to explain the delay sat