IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 728 of 2000 ----------------------------- CRA.328/1998 of SESSIONS COURT, THRISSUR CC.462/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONERaAPPELLANT/ACCUSED:: ------------------------------------------------------------- VIJAYAN, S/O.KOLLARA KOCHEKKAN,EDATHIRUTHY DESOM, EDATHIRUTHY VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.K.J.MOHAMMED ANZAR RESPONDENT/RESPONDENT/COMPLAINANT: --------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, VADANAPPILLY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3963 OF 2000 IN CRL.R.P.NO.728 OF 2000-A ........ DISMISSED. 21/8/2008. SD/-A.K.BASHEER, JUDGE. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 728 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008 ORDER Petitioner was tried for the offence punishable under Section 55 (a) of the Abkari Act before the trial court pursuant to the charge laid by the Asst.Sub Inspector of Police, Vatanappally. The prosecution case was that petitioner had kept 134 litres of toddy in his possession for sale without a licence on July 8, 1996. The trial court found the petitioner 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 of fine, to undergo simple imprisonment for 6 months. In appeal, the Sessions Court altered the conviction to one under Section 58 of the Act . However the sentence imposed by the trial court was maintained. Hence this revision petition. 2. As mentioned earlier, the Asst. Sub Inspector had laid the charge sheet before the court. He was examined as Pw.4 in the case. According to him, he was on law and order duty on July 8, 1996 along with some Constables. He searched the building in question on receipt of information that petitioner had kept toddy in the building for the purpose of sale without obtaining a licence. It is not necessary to refer to the procedural formalities which were allegedly followed by Pw.4 in the matter of seizure, sampling etc. in detail. In cross-examination Pw.4 had admitted that he had complied with the formalities while sampling. More importantly, Pw.4 asserted that he had conducted the search and seizure as authorised by the Sub Inspector under the provisions contained in Section 31. Pw.4 who was admittedly the Asst. Crl.RP.728/2000 2 Sub Inspector could not have conducted the search and seizure. In my view on that sole ground the prosecution is liable to fail. 3. In this context it may also be noticed that Pw.4 had not bothered to obtain a search warrant before the search and seizure as contemplated under Section 30. In view of the above glaring illegality and irregularity in the matter of search and seizure, I do not find any reason to deal with any other evidence adduced by the prosecution in this case, since in my view this fatal flaw in the prosecution case is sufficient to acquit the accused. Accordingly the petitioner is acquitted. The Revision Petition is allowed. A.K. Basheer Judge. an.