RAJU Vs. STATE OF KERALA

JUDGEMENT

(1.) SITTING in this jurisdiction, hearing Criminal Revision Petitions for the last one month, what I find is that more often than not, in abkari cases, this Court is forced to acquit accused merely on technical grounds, which arise from the failure on the part of the excise officers to comply with the procedure prescribed under law. In many cases which are reported in law reports also, the accused are acquitted on the ground that there is delay in producing contraband and samples before the court and the same is not duly explained by the officer concerned. In several cases, the prosecution does not care to prove that the sample drawn from the contraband and sealed was the one forwarded to chemical examiner for analysis. On that question, two cases are found in Volume I of 2007 K.L.T., viz, Sathi v. State of Kerala, 2007(1) KLT S.N. 57 Case No. 82 and Sasidharan v. State of Kerala, 2007(1) KLT 720. In both cases, this Court held that the prosecution has not discharged their duty to prove that it was the sample taken from the contraband liquor seized from the accused that reached the hands of the chemical examiner in a fool -proof condition. The very same defect appears in this case also.

(2.) THE petitioner in this Criminal R.P. is the accused in Sessions Case No. 333/2000 before the Assistant Sessions Judge, Mavelikkara. The prosecution was under Sections 8(1), 8 (2) and 55(a) of the Abkari Act. The prosecution case was that on 30.10.1997, while CW1 -Preventive Officer and his team were patrolling through Kallumala -Mankamkuzhi road in Arunoottimangalam Muri in Vettiyar Village of Mavelikkara Taluk, from west to east, at about 4.30 p.m., when they reached the southern side of the house of Sarasamma of Saji Bhavanam Veedu, the accused was found carrying 2 litres of arrack in a white plastic can measuring 2 litres. On confirming that the contents of the can were arrack, the accused was arrested on the spot and the can and the contents were seized under a mahazar prepared on the spot, and one sample was taken from the contraband in a glass bottle measuring 375 ml. The accused and contraband were taken to the range office at 9 p.m. on that day. The next day, CW1 entrusted the accused, the contraband and the records to CW7, who prepared the occurrence report and forwarded the accused to the court on 3.11.1997. Thereafter, CW8 conducted the investigation and filed the final report. After trial, the Assistant Sessions Judge convicted the petitioner for offences under Sections 55(a) read with Section 8 (2) of the Kerala Abkari Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs. 1 lakh with a default sentence of imprisonment for one year. His period of detention from 30.10.1997 till 7.11.1997 was directed to be set off. The petitioner filed an appeal before the Additional Sessions Judge -I, Mavelikkara, who dismissed the appeal confirming the conviction and sentence. The judgments of the courts below are under challenge before me.

(3.) IN answer, the learned Public Prosecutor would contend that the accused had no such contention before the courts below. No questions in this regard has been asked to any of the witnesses in cross examination. It is submitted that three days' delay cannot be fatal to the prosecution case. Regarding the proof regarding the sample taken from the contraband liquor seized, it is submitted that the sample has to be forwarded as per a forwarding note signed by the court, which only would be analyzed by the chemical examiner, and therefore the failure to mark the forwarding note cannot be held to be fatal to the prosecution case in this case. The public Prosecutor relies on the decisions of this Court in Vikraman v. State of Kerala, 2007(1) KLT 1010 and Jose v. State of Kerala, 2007(2) KLT 202 and the decision of Ravi's case (supra) quoted by the learned counsel for the petitioner. Therefore, according to the learned Public Prosecutor, the prosecution has succeeded in proving the guilt of the petitioner beyond any reasonable doubt and therefore there is no ground to interfere with the judgments of the courts below.