K. YESODA Vs. STATE OF KERALA

JUDGEMENT

(1.) The concurrent findings of guilt, conviction and sentence imposed on the revision petitioner under section 55(a) of the Abkari Act is challenged in this revision petition. The revision petitioner was the sole accused in C.C.No.360 of 1996 on the file of the Judicial First Class Magistrate, Kuthuparamba was found guilty and convicted thereunder. For the conviction under section 55(a) of the Abkari Act he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/ - and in default to undergo rigorous imprisonment for a further period of three months. Feeling aggrieved by the conviction and sentence, the revision petitioner had preferred Crl.A.No.36 of 1999 and the the appellate court as per the impugned judgment confirmed the conviction under section 55(a) of the Abkari Act but, modified the sentence. While maintaining the sentence of fine imposed by the trial court the sentence of rigorous imprisonment was reduced from six months to three months.

(2.) The case of the prosecution is as follows: -

(3.) According to the learned counsel for the revision petitioner, failure to consider a point of vital importance by the trial court as also by the appellate court resulted in grave failure of justice. The incident allegedly occurred on 22.9.1995. According to the learned counsel, the contraband articles were produced before the court along with a property list. So also it is contended that there is no material on record to show the date on which the contraband articles and also the sample were produced before the court. Relying on the oral evidence of PW2, it is contended that there is delay in producing the sample as also the contraband articles before the court. In that context, the learned counsel drew my attention to the finding of the appellate court that there is delay in the said matter. However, that point was not actually given due consideration, in accordance with the law established on that point. It is contended that on that sole score the petitioner is entitled to succeed in this revision petition. To buttress the said contention , the learned counsel relied on a decision of this Court in Rajendran v. State of Kerala (2007 (1) KLT 971) and also the decision of a Division Bench of this Court in Ravi v. State of Kerala and another (2011 (3) KHC 121). I will look into the sustainability of the said contention made relying on the aforesaid judgments. Necessarily, the question to be considered is whether there occurred unexplained delay in producing the contraband articles, including the sample, before the court. In that context, it is relevant to advert to the oral evidence of PW2. PW2 is the detecting officer. He deposed in the cross examination as hereunder: - ...[VERNACULAR TEXT COMITTED]...