Kerala High Court
Thankachan @ P.C.Jose vs The Excise Inspector on 26 July, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
WEDNESDAY, THE 19TH DAY OF JULY 2017/28TH ASHADHA, 1939
Crl.Rev.Pet.No. 2289 of 2003 ( )
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AGAINST THE ORDER/JUDGMENT IN CRA 228/1999 of ADDITIONAL SESSIONS COURT
(ADHOC) II KASARAGOD DATED 26-07-2003
AGAINST THE ORDER/JUDGMENT IN CC 135/1997 of JUDICIAL FIRST CLASS
MAGISTRATE COURT -II,HOSDRUG DATED 13-10-1999
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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1. THANKACHAN @ P.C.JOSE
S/O. PANDIPARAYIL VEETTIL T. CHERIYAN
RESIDING AT PLATHADAM
PARAPPA VILLAGE, BIRIKULAM
2. MARUVAN @ MADHAVAN
S/O. PAPPANATH VEETTIL MOTHIRAN
RESIDING AT KOLIYANTHADAM
KINANOOR VILLAGE, HOSDRUG TALUK
BY ADVS.SRI.PHILIP T.VARGHESE
SMT.T.SUDHAMANI
SMT.ACHU SUBHA ABRAHAM
SMT.K.R.MONISHA
SRI.THOMAS T.VARGHESE
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:
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1. THE EXCISE INSPECTOR, NILESHWAR EXCISE RANGE
2. THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR , HIGH COURT OF
KERALA, ERNAKULAM
BY PUBLIC PROSECUTOR SMT. PRIYA SHANAVAS
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
19-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SHG/
K.P. JYOTHINDRANATH, J.
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Crl.R.P.No.2289 of 2003
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Dated this the 19th day of July, 2017
O R D E R
This criminal revision petition is filed against the concurrent finding of guilt by the courts below. The conviction is under Section 55 (g) of the Abkari Act. The allegation is that on 27.1.1997 at about 4.30 pm. the revision petitioners were found in possession of wash for distillation of arrack and thereby they committed an offence under Section 55 (g) of the Abkari Act.
2. Revision petitioner was convicted by the judgment of Judicial First Class Magistrate Court No.II in C.C.135/1997 which was confirmed in Crl.A.228/1999 by the Additional Sessions Judge (Ad Hoc) II, Kasaragod.
3. The detecting officer seized the contraband, sample was taken from the wash, sealed and labelled, seizure mahazar was prepared and a crime was registered thereon. Thereafter a final report was filed. Prosecution altogether examined PWs 1 to 3. Exts.P1 to P3 were marked. MOs 1 and 2 were also identified. The trial court Crl.R.P.No.2289 of 2003 2 convicted the accused and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- each with default simple imprisonment for one month. Aggrevied by the said order the revision petitieonrs herein moved an appeal, which was also not successful. Hence, this criminal revision petition.
4. The main argument advanced before this court is that neither the sample nor the contraband was produced before the trial court forthwith. It is materially prejudiced and tampering also cannot be ruled out. It is the submission that property list and forwarding note were not marked in this proceedings.
5. I heard the learned Public Prosecutor, who submitted before this court that here is a case where actually chemical analysis was done and it is an indication that property list and forwarding note will be therein and may be omitted to mark in the proceedings.
6. After hearing the learned Prosecutor, I perused the records in this case. The detection was on 27.1.1997. Surely the property list is available in the records. It can be Crl.R.P.No.2289 of 2003 3 seen that it was not marked and further from the office seal and the initial of the Magistrate it can be seen that contraband reached before the court only on 17.2.1997. There is an inordinate delay in reaching the sample before the court. But the same is not seen explained by the prosecution. As per the dictum laid down by this court in Raju v. State of Kerala [2012 KHC 877] the article should be produced before the court forthwith. That is not complied with herein. It is also relevant to note that the forwarding note is also not marked in this proceedings. Under such circumstances, it can be only said that the benefit of doubt can be extended to the revision petitioners in this case. Hence the criminal revision petition is allowed setting aside the conviction and sentence imposed against the revision petitioners. The bail bond, if any, executed by the revision petitioners is cancelled and they are set at liberty.
Sd/-
K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/