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Judgment
Dr. Kauser Edappagath, J
This revision petition has been directed against the judgment dated 28/8/2010 passed by the Additional District and Sessions Judge, (Adhoc) Court-I, Pathanamthitta (for short, 'the appellate court') in Crl.Appeal No.44/2008 confirming the judgment dated 18/1/2008 passed by the Assistant Sessions Judge, Thiruvalla (for short, the trial court) in SC No.149/2002.
The revision petitioner is the accused No.2. He faced trial under Section 8(1) & (2) of the Abkari Act.
The prosecution case in short is that on 02/05/1999 at 8 pm, the revision petitioner/accused No.2 and the remaining accused were found in possession of 15 litres of illicit arrack in contravention of the Abkari Act and Rules and thereby committed the offence.
On receipt of summons, the accused appeared at the court below. After hearing both sides, the court below framed charge under Section 8(1) & (2) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW5 were examined and Exts. P1 to P7 were marked. MO1 and MO2 were identified. On the side of the defence, DW1 was examined and Ext.D1 was marked. On appreciation of evidence, the trial court sentenced the accused to undergo rigorous imprisonment for a period of 2 years and to pay a fine of ₹1,00,000/-, in default to suffer simple imprisonment for a period of six months. In appeal, the appellate court confirmed the conviction and sentence. Aggrieved by the conviction and sentence passed by the courts below, the accused has preferred this revision petition.
I have heard Sri. C.A. Chacko, the learned counsel for the revision petitioner and Smt. S. Rekha, the learned Senior Public Prosecutor.
The learned counsel for the revision petitioner impeached the finding of guilt passed by the courts below on three grounds.
(1) Ext.P1 seizure mahazar does not contain seal or its description. (2) There is no seal in Ext.P4 forwarding note. (3) There is an undue delay of 8 days in producing the contraband substance at the court.
The learned Public Prosecutor, on the other hand, supported the findings and verdict of the courts below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.
The first point canvassed by the learned counsel for the revision petitioner is regarding the absence of sample seal in the seizure mahazar. This Court in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 seizure mahazar would show that it does not contain the sample seal or the description of the seal used.
The second point canvassed by the learned counsel for the revision petitioner is regarding the absence of seal in the forwarding note. This Court in Smithesh v. State of Kerala (2019 (2) KLT 974) has held that the forwarding note must contain the specimen of the seal affixed on the sample. The forwarding note is the link evidence to show that the same sample which was drawn from the contraband seized from the accused had eventually reached the chemical analysis laboratory by change of hands in a tamper proof condition. In the absence of seal in the forwarding note, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition.
The third contention put forward by the learned counsel for the revision petitioner is about the delay in producing the samples of contraband substance at the court below. It is settled that the unexplained delay in producing the contraband substance and the samples drawn from it at the court is fatal to the prosecution case. The Apex Court in State of Uttar Pradesh v. Hansraj @ Hansu [(2018) 18 SCC 355] has held that when there is delay in producing samples of contraband substance in Court and when evidence is that they were kept in police station, prosecution has to adduce evidence to show as to how and in what condition the same were preserved at the police station. A Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] has held that even though law does not mandate production of seized articles forthwith before the Court and it enjoins only reporting the seizure forthwith to the Court, the production of the seized articles shall take place without unnecessary delay and if there is delay, it should be satisfactorily explained. A Single Bench of this Court in Ramankutty v. Excise Inspector [2013 (3) KHC 308] has held that in the absence of proper explanation for the delay, even one day's delay is fatal. Similar view has been expressed by another Single Bench of this Court in Ravi v. State of Kerala [2018 (4) KLT Online 2056]. Relying on the Division Bench's decision in Ravi (supra), recently, another Single Bench of this Court in Anilkumar v. State of Kerala (2020 (4) KLT 34) has also took the view that the delay in producing the samples of contraband substance in Court in the absence of satisfactory explanation is fatal.
Coming to the facts of the case, the detection was on 02/05/1999. The accused was produced at the court on 03/05/1999. However, the contraband substance was produced at the court only on 10/05/1999. Thus, there is a delay of 8 days. This has not been explained at all. There was absolutely no evidence to show as to how and in what condition the contraband articles were kept. 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 satisfactorily, but also to prove how and in what condition the same were preserved during the interregnum period. The prosecution failed to satisfy this twin conditions.
The aforesaid vital aspects were not taken into consideration by the courts below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the courts below suffer from illegality and it cannot be sustained.
In the result, the criminal revision stands allowed. The conviction and sentence passed by the courts below vide the impugned judgments are set aside. The revision petitioner is found not guilty of the offences charged against him and accordingly he is acquitted. His bail bond is cancelled.