Guruvayya vs State Of Kerala

The revision petitioner was convicted and sentenced by the courts below under Section 55(a) of the Abkari Act.

The prosecution allegation is that on 5.11.1999 at about 6 p.m., the revision petitioner was found in possession of 60 packets of Karnataka made arrack, each packet having a capacity of 100 ml each, in contravention of the provisions of the Abkari Act. The total quantity of contraband found in possession of the revision petitioner was six lires.

Since there is no representation for the revision petitioner, this Court appointed Adv.Shri Latheesh Sebastian as the Amicus Curiae to argue the case for the revision petitioner.

Heard the learned Amicus Curiae and the learned Public Prosecutor.

The learned Amicus Curiae has argued that even though the incident in this case was on 5.11.1999, the contraband and the samples were produced before the court only on 4.2.2000 and hence, the revision petitioner is entitled to benefit of doubt.

It appears that the incident in this case was on 5.11.1999. PW4 produced the contraband and the samples before the Court. PW4 stated that the contraband and the samples were produced before the court only on 4.2.2000. PW4 further stated that he entrusted the same with the Station Writer. However, the Station Writer was not examined to prove the safe custody of the contraband and the samples till their production before the court. No reason was also stated by the prosecution for the delayed production of the contraband and the samples before the court. The delay as such, is not always fatal to the prosecution case. However, unexplained delay is, no doubt, fatal to the prosecution case. In this case, since there was unexplained delay from 5.11.1999 to 4.2.2000 in producing the contraband and the samples before the court, there cannot be any guarantee that the samples produced before the court and analysed in the laboratory were the samples drawn from the contraband seized from the revision petitioner. In the said circumstances, there is no satisfactory link evidence to show that the same samples which were drawn from the contraband seized from the revision petitioner which eventually reached the hands of the Chemical examiner in a tamper - proof condition by change of hands. In the said circumstances, the revision petitioner is entitled to benefit of doubt.

In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner stands acquitted. The bail bond of the revision petitioner stands discharged.