IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 520 of 2007(E) ------------------------------ CRA.132/2003 of ADDL. SESSIONS COURT (ADHOC), KALPETTA CC.388/2000 of JUDL.MAGISTRATE OF FIRST CLASS, MANANTHAVADY .................... REVN. PETITIONER(S): REVISION PETITIONER ---------------------------------------- CHAKKARA MOIDU,S/O.ABDULLA,CHAKKARA HOUSE,VALAD POST,MANANTHAVADY. BY ADV. SRI.P.K.RAMKUMAR RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 520 OF 2007 ............................................ DATED THIS THE 12th DAY OF DECEMBER, 2008 ORDER Revision petitioner was convicted and sentenced for the offence under Section 55(a) of Abkari Act by Judicial First Class Magistrate, Mananthavady. Conviction and sentence was confirmed by Additional Sessions Judge, Kalpetta in Crl.A.132 of 2003. Revision petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel argued that the courts below did not properly consider the question whether the sample examined at the Laboratory, based on which Ext.C1 report was prepared, is the sample which was seized from revision petitioner as claimed by Pws 1 and 2. It was argued that Ext.P1 seizure mahazar does not show the details of the sealing and evidence of Pws 1 and 2 also do not establish that there was proper sealing of the sample and even though seizure was on 23.3.1997, the sample reached the court only on 5.4.1997 and there is no evidence as to who was in custody of the sample from the date of seizure till CRRP 520/2007 2 5.4.1997 and when the signature of the accused or the witnesses were not taken, on the sample at the time of sealing its authenticity cannot be ascertained and therefore based on Ext.C1, revision petitioner cannot be convicted. Learned counsel also argued that even though the case of prosecution is that 125 polythene packets of Karnataka arrack were seized from revision petitioner and they were enclosed in a white polythene bag which was kept inside a hard board box kept in the autorickshaw, neither the hard board box nor the polythene bag was produced before the court and courts below were not justified in holding that PW1 had obtained sanction to destroy the material objects seized, as sanction was only to destroy the remaining 122 polythene bags of arrack and not the polythene bag or hard board box. Learned counsel also argued that the very seizure is suspicious as even the driver of the autorickshaw was not made a witness to Ext.P1 seizure mahazar and therefore the conviction is not sustainable. 4. There is force in the submission of the learned counsel appearing for revision petitioner. According to prosecution case, on 23.3.1997, at about 10.45 pm, while PW2, S.I along with PW1, Head Constable were checking the vehicles, an autorickshaw CRRP 520/2007 3 came from Mananthavady side and on checking, revision petitioner along with two other accused were found as passengers and in front of their seat, there was a hard board box containing a white polythene bag in which there were 125 packets each containing 100 ml arrack with writings in Karnataka language indicating that it is arrack brought from Karnataka. It is the prosecution case that three of the 125 packets were separately sealed. Ext.P1 mahazar only shows that three polythene packets were tied together with a thread and was sealed. Ext.P1 does not reveal how the sample was sealed. Evidence of Pws 1 and 2 also do not reveal that either the signature of any of the accused or witnesses was obtained on the seal, to establish its authenticity, at the time of production before the court. It is also not established that any seal was affixed on the sample or that the seal was made available to court along with the sample when it was produced. Though the seizure was on 23.3.1997, prosecution has no case that either the sample or the remaining 122 polythene packets of arrack were produced before Magistrate on that day or immediately thereafter. On the otherhand, evidence only shows that the sample packets were produced before the court on 5.4.1997. CRRP 520/2007 4 Evidence of PW1 does not reveal who was in custody of the samples till 5.4.1997. Therefore it is not possible to hold that it was the three samples, which were prepared at the scene of seizure, which were produced before court. Therefore even if it is taken that sample, which was produced before the court was forwarded to Chemical Examiners Laboratory at Thiruvananthapuram as seen in Ext.C1 report, there is no guarantee that it is the very same sample which were seized from the accused that were produced before the court. If that be the case it is not possible to convict petitioner based on Ext.C1 report. 5. Moreover, even if it is taken that as evidenced by Ext.P3 memo, PW2 was authorised to destroy the remaining packets of arrack involved in the case, Ext.P3 do not authorise PW1 or PW2 to destroy either the hard board box or the polythene bag. There is no explanation as to what happened to the polythene bag as well as the hard board box were allegedly 125 polythene packets were enclosed. The non production of the said materials is also fatal to the prosecution case. Therefore on the failure of the prosecution to establish proper sealing and also for the failure to establish that samples were in proper custody from the date of CRRP 520/2007 5 seizure till they were produced before court and on the failure to establish that it was the very same materials which were seized from the accused which were produced before the court, conviction of petitioner for the offence under Section 55(a) of Abkari Act is not sustainable. 6. Revision petition is allowed. Conviction of petitioner under Section 55(a) of Abkari Act is set aside. Revision petitioner is found not guilty of the offence. He is acquitted. The bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE lgk/-