IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 Crl.Rev.Pet.No. 1374 of 2001() ------------------------------------------ CRA.130/1998 of SESSIONS COURT, THODUPUZHA CC.132/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI .................... REVN. PETITIONER: APPELLANT/ ACCUSED ---------------------------- JOSEPH, S/O. JOSEPH THAZHACKAL HOUSE, POOMALA KARA, VELLIAMATTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.RAVI KUMAR SRI.S.RAJEEV RESPONDENT: RESPONDENT/ COMPLAINANT ----------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA( CR.NO.59/95 OF IDUKKI EXCISE RANGE.) BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP. NO.1374/2001 ORDER ON CRL.MP. NO.6561/2001 IN CRLRP. NO.1374/2001 DISMISSED 03.06.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.S. TO JUDGE tss A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1374 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2008 ORDER Petitioner was tried for an offence punishable under Section 55 (g) of the Abkari Act. The trial court found him guilty and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.25,000/- and in default of payment, to suffer further imprisonment for six months. In appeal the Sessions Court confirmed the order of conviction and substantive sentence. But the sentence of fine was reduced from Rs.25,000/- to Rs.5,000/- with a default sentence of 3 months. 2. The prosecution case in brief was that on September 3, 1995 at about 6.30 AM, petitioner was apprehended and arrested with 10 litres of wash in his possession. The Excise party led by Pw.2 had recovered the contraband liquor from the petitioner at Poomala Junction in Velliyamattom village of Thodupuzha Taluk. 3. The prosecution examined Pws.1 to 4 and marked Exts.P1 to P4 and M.O.1 in the case. There was no oral or documentary evidence on the side of the accused. 4. It is contended by learned counsel for the petitioner that the order of conviction and sentence is totally vitiated since the prosecution had not explained the long delay in forwarding the occurrence report, seizure mahazar, contraband liquor, sample bottle etc. to the court. No evidence was also adduced by the prosecution to show that the sample bottle was kept in proper custody either at the Excise Office or at the Court. There is considerable force in the above contention. CrlRP.1374/2001 2 5. As noticed already, the crime was detected and sample was taken from the contraband liquor on September 3, 1995. According to Pw.2, the Excise Inspector, he had prepared Ext.P1 mahazar and Ext.P2 occurrence report at the scene of occurrence itself, after completing the formalities. But in the course of cross examination Pw.2 admitted that Exts.P1 mahazar and P2 report had reached the court only on January 30, 1996. No explanation was offered by Pw.2 for the delay. Further, it is seen from Ext.P4 report of the Chemical Examiner that the sample was received at the laboratory only on February 1, 1996. No evidence was adduced by the prosecution to show that the sample bottle was kept in proper custody at the Excise Office. No explanation was also offered for the inordinate delay in forwarding the records, the sample bottles etc. to the Court immediately. 6. Curiously Pw.2 admitted that he had not taken the sample from the wash that was allegedly recovered from the accused. Pw.1 the Preventive Officer also did not have a case that he had lifted the sample from the contraband liquor. Thus the prosecution had not adduced any evidence with regard to sampling. Who shifted the sample from the contraband liquor remained a mystery. 7. Having gone through the evidence of Pws. 1 and 2, I have no hesitation to hold that no reliance can be placed on the testimonies of these two witnesses. CrlRP.1374/2001 3 8. For the foregoing reasons the order of conviction and sentence passed against the petitioner is liable to be set aside. I do so. The petitioner is therefore acquitted. Crl. R.P. is allowed. A.K. Basheer Judge. an.