Praveen vs State Of Kerala

Dr. Kauser Edappagath, J

This revision petition has been directed against the judgment dated 6.8.2014 passed by the Additional District and Sessions Court-III, Palakkad Division (for short, 'the appellate court') in Crl.Appeal No.688/2010 confirming the judgment of conviction dated 25.11.2010 passed by the Assistant Sessions Court, Palakkad Division (for short, 'the trial court') in SC No.714/2007.

The revision petitioner is the accused No.4. He along with the remaining accused faced trial for the offence punishable under Section 55(a) of the Abkari Act.

The prosecution case in short is that on 2.9.2006 at 11.30 am, at Malamalamukku Junction, near Alathur, the accused were found transporting 175 litres of rectified spirit in a Maruti Alto car in contravention of the Abkari Act and the Rules and thereby committed the offence.

On receipt of the summons, the revision petitioner along with the remaining accused appeared at the trial court. After hearing both sides, the trial court issued charge against the accused under Section 55(a) of the Abkari Act. The charge was read over and explained to them who pleaded not guilty. The prosecution examined PW1 to PW11 and marked Exts.P1 to P20. MO1 to MO7 series were identified. On the side of the defence, no evidence was adduced. After trial, the trial court found the accused Nos. 2 and 4 guilty under Section 55(a) of the Abkari Act and they were convicted and sentenced for the said offence. The trial court sentenced them to undergo rigorous imprisonment for a period of three years and to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment for a period of six months. In appeal, the appellate court confirmed the conviction entered by the trial court. The sentence of rigorous imprisonment for three years was modified and reduced to rigorous imprisonment for two years each. Aggrieved by the conviction and sentence passed by the courts below, the accused No.4 has preferred this revision petition.

I have heard the learned counsel for the revision petitioner and the learned Senior Public Prosecutor.

Learned counsel for the revision petitioner impeached the impugned judgments mainly on the ground that there is a delay of 10 days in producing the contraband articles at the court below.

The learned Senior Public Prosecutor, on the other hand, supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.

The main point canvassed by the learned counsel for the revision petitioner is regarding 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 2.9.2006. However, the contraband substance was produced at the court only on 12.9.2006. Thus, there is a delay of 10 days. This has not been explained satisfactorily. 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 aspect was 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 petition 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.