IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1346 of 2003()
1. CHALIL GOPI, S/O. KRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.P.RAMACHANDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :31/05/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1346 OF 2003
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Dated 31st May, 2010
O R D E R
Petitioner, the accused in
C.C.185/1996 on the file of Additional Chief
Judicial Magistrate, Thalassery was convicted
and sentenced to simple imprisonment for six
months and a fine of Rs.25,000/- and in
default simple imprisonment for six months for
the offence under Section 55(a) of Abkari Act.
Petitioner challenged the conviction and
sentence before Sessions court, Thalassery in
Crl.A.339/1998. Learned Additional 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
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the petitioner and learned Public Prosecutor
were heard.
3. Argument of the learned counsel is
that though Ext.P3 report of chemical analysis
was relied on by the courts below to find that
petitioner was in possession of illicit arrack,
courts below should not have relied on Ext.P3
in the absence of evidence to prove that the
said certificate was obtained on examination of
the sample collected from the contraband
article seized from the petitioner. It was
pointed out that though PW1 the detecting
officer was examined, he did not give any
evidence as to the production of MO.1 can or
the sample in court and there is no evidence to
prove when exactly the sample was produced in
court or when it was forwarded for chemical
analysis and therefore, courts below should not
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have convicted the petitioner relying on
Ext.P3. Learned counsel would argue that even
if the property list and forwarding note
available among the records were perused, they
will not throw any light on when exactly MO.1
sample was received in court and was forwarded
and in such circumstances, petitioner is at
least entitled to the benefit of reasonable
doubt. Learned counsel further argued that
in any case, conviction for the offence under
Section 55(a) of Abkari Act will not lie as
there is no allegation that petitioner was
found in possession of illicit arrack in the
course of import or export. Reliance was placed
on the decision of this court in Surendran v.
Excise Inspector (2004 (1) KLT 404) and Mohanan
v. State of Kerala (2007 (1) KLT 845).
4. Learned Public Prosecutor submitted
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that neither before the trial court nor before
the appellate court the question of production
of MO.1 or the sample or validity of Ext.P3
report was challenged and property list
accepted by the learned Magistrate shows that
on 2/11/1995 itself MO.1 and the sample were
produced in court and records show that when
the final report was submitted it was
returned , as there is no requisition to send
the sample and the requisition was submitted
before the court on 12/4/1996 as seen from the
court seal and in such circumstances, based on
the lack of such evidence the conviction
cannot be quashed. Learned Public Prosecutor
pointed out that both the courts have properly
appreciated the evidence and there is no reason
to interfere with the conviction or the
sentence.
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5. Prosecution case is that on
1/11/1995 at about 7.45 a.m while PW1 the
Excise Inspector, Koothuparamba Excise Range
along with PW2 Excise Guard were on patrol
duty, they found the petitioner standing on the
side of the road holding MO.1 can and getting
suspicious, petitioner was apprehended. On
opening the can it was found that it contained
about four liters of illicit arrack ascertained
by its smell and taste. Petitioner was
arrested. Mo.1 can which contained illicit
arrack was seized. The sample was taken in a
180 ml. bottle. The sample and MO.1 were sealed
in the presence of the petitioner and Pws.3 and
4 the attesting witnesses. After the sample was
sent for chemical analysis from court on
requisition submitted. Ext.P3 report of
chemical analysis was received on examination
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of the sample.
6. Argument of the learned counsel is
that PW1 did not depose that sample taken or
MO.1 can were produced in court and therefore,
there is no evidence. It is also argued that
property list and the forwarding note were also
not marked and in such circumstances, there is
no evidence when the sample was produced in
court and when it was sent and and even if,
the records available, are perused they will
not show when the sample and MO.1 were received
in court and at best, it would show that it
was sent for chemical analysis in 1996. True,
when PW1 was examined, he did not depose
specifically that MO.1 can containing illicit
arrack seized or the sample were produced in
court. But Ext.P3 was marked as the report
of chemical analysis, received on examination
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of the sample from the laboratory. Ext.P3 shows
that the said report was submitted after
analysis of the sample sent from court, as per
R.P.29/1995 dated 12/4/1996. Though property
list and forwarding note were marked, I have no
hesitation to hold that those records could be
looked into, especially when petitioner did
not challenge these aspects before the trial
court or the appellate court. Property list
shows as it was prepared on 1/11/1995 by PW1
Excise Inspector on the date of seizure itself.
On the reverse side of property list it is
noted that it was received and entered as
R.P.29/1995. Forwarding note accompanying the
property list shows that it was received in
court on 12/4/1996. Final report shows that
was submitted before the court on 12/2/1996 and
was returned, as there was no requisition for
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sending the sample for chemical analysis. It
further shows that final report was re-
submitted on 11/4/1996, with the requisition to
send the sample for chemical analysis. Court
seal in the final report shows that it was
received in court on 12/4/1996. Requisition to
forward the sample to chemical analysis sent
along with property list shows the court seal
dated 12/4/1996. Therefore, it is absolutely
clear that Ext.P3 report was prepared after
examination of the sample which was produced in
court and received as R.P.29/1995 as per the
property list prepared on 1/11/1995 and
received in court on 2/11/1995. It was
forwarded on 12/4/1996 pursuant to the
requisition to forward the sample, as clear
from Ext.P3 report. In the light of these
materials and inherent evidence, I have no
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hesitation to hold Ext.P3 report was submitted,
on chemical analysis of the sample produced in
court by PW1 after its seizure from the
petitioner on 1/11/1995.
7. Though seizure was challenged,
learned Magistrate and learned Sessions Judge
appreciated the evidence of Pws.1 and 2 in the
light of Ext.P3 the contemporaneous record
prepared and evidence of Pws.3 and 4 show that
though they did not support the prosecution
case in toto, on their evidence the seizure
cannot be disbelieved. Learned Magistrate
accepted the evidence after proper
appreciation. Learned Sessions Judge also
accepted it. I find no reason to interfere
with the appreciation of evidence or the
finding that MO.1 was seized from the
petitioner on 1/11/1995 and sample was prepared
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as deposed by PW1 and corroborated by the
evidence of PW2.
8. Then the question is whether
identity of the sample produced in court is
established. Ext.P1 seizure mahazar itself show
that after sealing MO.1 and the sample
petitioner was asked to affix his seal and he
declined stating that the seal affixed is
sufficient. PW1 from the box re-iterated that
version. It was not challenged in cross
examination. Therefore, evidence establishes
that PW1 has taken sample from MO.1 can seized
in the presence of the petitioner and sealed
it. Ext.P3 report is based on chemical analysis
of the sample so taken. Ext.P2 establishes
that sample is illicit arrack. Therefore,
prosecution has conclusively establish that
petitioner has been in possession of illicit
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arrack on 1/11/1995.
9. Then the question is what is the
offence attracted. Though petitioner was
convicted for the offence under Section 55(a)
of Abkari Act, as held by the Division Bench of
this court in Surendran v. Excise Inspector
(2004 (1) KLT 404) and Mohanan v. State of
Kerala (2007 (1) KLT 845), conviction for the
offence under Section 55(a) of Abkari Act will
not lie as prosecution has no case that
petitioner was in possession of the contraband
article, either in the course of import or
export. He could only be convicted for the
offence under Section 58 of Abkari Act.
Conviction for the offence under Section 55(a)
is therefore, not sustainable. But petitioner
is to be convicted for the offence under
Section 58 of Abkari Act.
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10. Then the question is regarding
the sentence. As Section 58 then stood,
sentence provided was fine which shall not be
less than rupees fifteen thousand and
imprisonment for a term which may extend to one
year. Though there was minimum fine of rupees
fifteen thousand provided, there was no minimum
substantive sentence provided. Considering the
fact that the incident was in 1995 and
petitioner was not involved in any other
abkari offences, interest of justice will be
met, if petitioner is sentenced to simple
imprisonment for one month and a fine of rupees
fifteen thousand and in default simple
imprisonment for one month.
Revision is allowed in part. Conviction
of the petitioner for the offence under Section
55(a) of Abkari Act and sentence awarded are
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set aside. Petitioner is convicted for the
offence under Section 58 of Kerala Abkari Act
and sentenced to simple imprisonment for one
month and fine of Rs.15,000/- (Rupees Fifteen
thousand only) and in default simple
imprisonment for one month. Petitioner is
entitled to get set off, as provided under
Section 428 of Code of Criminal Procedure.
Additional Chief Judicial Magistrate, Thalssery
is directed to execute the sentence. Petitioner
is directed to appear before the learned
Magistrate on 1/7/2010.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.