Thankappan vs State Of Kerala And Ors

The revision petitioner was the accused in SC No. 379 of 2005 on the file of the Assistant Sessions Court, Mavelikkara and the appellant in Crl.Appeal No. 635 of 2008 on the file of the Additional Sessions Court-I, Mavelikkara. The offence alleged against the accused is punishable under Section 8(2) r/w Section 8(1) of the Kerala Abkari Act (hereinafter referred to as, "the Act").

The prosecution case, in brief, is that on 06.01.2003 at 5.30 pm, while PW5 along with the excise party was on patrol duty along the panchayat road leading to Budha Engineering College from Kuthirakettumthadam junction on the southern side of Sree Bhadra Devi Temple, the accused was found possessing and transporting one litre of arrack in MO1 plastic can having a capacity of two litres.

Accordingly, the accused was arrested in accordance with law and after conducting investigation, final report was filed under Section 8(1) and (2) of the Act.

On committal, after having heard both sides, the trial court framed charge against the accused for the offence punishable under Section 8(2) r/w Section 8(1) of the Act. The charge was read over, to which the accused pleaded not guilty.

During the trial, PWs 1 to 5 were examined and marked Exts.P1 to P4 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. He denied all the incriminating circumstances appearing in the evidence against him. When he was called upon to enter on his defence, DW1 was examined on his side.

On appreciation of the evidence, by its judgment dated 20.12.2008, the trial court convicted and sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment fine to undergo rigorous imprisonment for three months more for the offence punishable under Section 8(2) r/w Section 8(1) of the Act.

Challenging the conviction and sentence imposed by the trial court, the accused preferred Crl. Appeal No. 635 of 2008 and the appellate court, by its judgment dated 16.02.2010, dismissed the appeal confirming the judgment of conviction and sentence imposed by the trial court. Feeling aggrieved, the accused is before this Court in revision.

Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State.

The learned counsel for the revision petitioner contended that both the trial court and the appellate court, without cross checking the reasoning with the evidence on record, convicted and sentenced the accused for the offence punishable under Section 8(2) of the Act. The learned counsel further submitted that the occurrence in this case was on 06.01.2003 at about 5.30 pm and the contraband was seized by PW5 as per Ext.P1 seizure mahazar.

It is a fact that the contraband involved in this case is one litre of illicit arrack. Ext.P1 seizure mahazar was prepared by PW1 on 06.01.2003. It was produced before the court on 07.01.2003 along with Ext.P3 crime and occurrence registered against the accused. However, Ext.P4 property list was produced before the court on 10.01.2003. No reasonable explanation was offered by PW5 for the delay in furnishing the material object before the court. This would indicate that PW5 was in possession of MO1 containing contraband liquor from 06.01.2003 to 10.01.2003 though other documents pertaining to the occurrence and the accused were produced before the learned Magistrate on 07.01.2003. The delay in producing the material objects before the court immediately after the occurrence has not been explained by the prosecution. Thus, the seized contraband was not produced before court as provided under Section 102(1) of the Cr.P.C. and Section 36 of the Act.

Ext.P2 Certificate of Chemical Analysis would show that with reference to letter No.TR 10/2003 dated 13.01.2003 received from the Judicial First Class Magistrate, Mavelikkara, the Chemical Examiner attached to the Government examined one sealed bottle containing 200 ml of contraband involved in Crime No. 2 of 2003 of Mavelikkara Excise Range and reported that the sample of liquid contained 35.78% by volume of ethyl alcohol. According to the Chemical Examiner, the seal on the bottle was intact and found tallied with the sample provided.

On going through Ext.P1 seizure mahazar, no sample seal is seen affixed. Similarly, the copy of the forwarding note allegedly submitted by PW5 before the court is not seen marked in this case. There is nothing on record to show that the sample seal on the bottle allegedly examined by the Chemical Examiner is found tallied with the sample seal provided. In fact, the specimen impression of sample seal has not been produced in this case.

Relying on the evidence of PW5, the detecting officer, and PW1, who accompanied PW5 on the date of occurrence, both the trial court and the appellate court wrongly convicted and sentenced the accused without considering the above material aspects involved in this case. Thus, the judgment of the appellate court confirming the conviction and sentence imposed by the trial court is against the mandate of law. The reasonings and findings recorded by the trial court and the appellate court are not consistent with the materials on record.

In the result, the criminal revision petition is allowed. The revision petitioner/accused is found not guilty of the offence punishable under Section 8(2) r/w Section 8(1) of the Act and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any amount is deposited pursuant to an interim order passed by this Court, the same shall be released to the revision petitioner/accused in accordance with law. Pending applications, if any, stand disposed of.