IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 CRL.A.No. 923 of 2002(C) ------------------------ SC.288/2000 of III ADDL. SESSIONS COURT FAST TRACK – NO.1, ( ADHOC), THRISSUR .................... APPELLANT(S): PETITIONER ------------------------ SHAJU S/O. NARAYANAN, CHAVARAKARAN HOUSE, MATTATHUR VILLAGE, MANDARAPILLY DESOM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT -------------------------- STATE- REPRESENTED BY EXCISE INSPECTOR OF IRINJALAKUDA RANGE BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 923 of 2002 * * * * * * * * * * * * * * * * * * Dated: 16-09-2009 JUDGMENT The appellant was prosecuted by the Excise Inspector, Irinjalakkuda Range in Crime No. 30/98 for an offence punishable under Sec. 55(g) of the Abkari Act. 2. The case of the prosecution is that on 15-5-1998 at 12 noon on the southern side of Kunhithodu in Mangarappilly Desom, Mattathur Village of Mukundapuram Taluk the accused was found in possession of 70 litres of wash in two jerry cans each of 35 litres capacity and the accused has thereby committed an offence punishable under Sec. 55 (g) of the Abkari Act. 3. On the accused pleading not guilty to the charge framed against him by the court below the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as P.Ws 1 to 5 and got marked six documents as Exts.P1 to P6 and 2 material objects as Mos 1 to 2. Crl.Appeal No. 923 of 2002 -:2:- 4. After the close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. When called upon to enter on his defence he examined DW1 to prove that he was not arrested from the place mentioned by the prosecution but was arrested from the cycle shop run by the accused and that the accused had participated in the agitation against a nearby toddy shop owner who had a grudge against the accused. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 3-9-2002 found the appellant guilty of the offences and sentenced him to rigorous imprisonment for one year and to pay fine of Rs. 1,00,000/- and on default to pay the fine, to suffer rigorous imprisonment for three months. It is the said judgment which is assailed in this appeal by the accused. 7. I heard the learned counsel appearing for the appellant and the learned Public Prosecutor. Crl.Appeal No. 923 of 2002 -:3:- 8. P.W.1 (Paulose) was the Excise Guard who accompanied the detecting officer, P.W.4. P.Ws 2 and 3 are the independent witnesses to the search and seizure. Both of them turned hostile to the prosecution. P.W.4 is the Excise Preventive Officer, who detected the offence. P.W.5 is the Excise Inspector who laid the charge. 9. DW1 is a worker in a nearby hotel. He was examined to prove that the accused was arrested from his cycle shop and not from the scene of crime as alleged by the prosecution. 10. After hearing both sides and perusing the records, I am of the view that the prosecution has not succeeded in bringing home the guilt of the appellant beyond reasonable doubt. All that the prosecution has proved is that on 15-5-1998 at about 12 noon P.W.4 accompanied by P.W.1 found the accused in possession of two jerry cans each of 35 litres capacity and containing 70 litres of a fluid alleged to be wash. 11. In as much as P.Ws 1 and 4 could not identify the contents of the jerry cans as “wash” since it was only a turbid Crl.Appeal No. 923 of 2002 -:4:- fluid before fermentation, they cannot be said to be expers to say that the contents of the jerry cans was “wash” as described in Paravan v. State of Kerala - 2007 (1) KLT 369. P.W.4 claims to have taken two samples each of 500 ml. Ext.P5 property list shows that on 22-5-1998 i.e. 7 days after the alleged detection two sealed bottles were produced before Court along with two jerry cans each of 35 litre capacity. The only other evidence produced by the prosecution is Ext.P6 Chemical Analysis Report dated 3-6-1998. The said report shows that two sample bottles were received by the Chemical Examiner along with the letter dated 3-6-1998 of J.F.C.M., Chalakkudy for analysis and on analysis the samples were found to contain traces of ethyl alcohol. After the production of the samples before Court on 22-5-1998 there is no material to indicate whether any forwarding note or requisition was submitted by the Investigating Officer before Court requesting the Magistrate to send the sample for analysis. It is not seen explained as to why the Magistrate forwarded the samples without any forwarding note or requisition by the Investigating Officer. The thondi Section Clerk of the Magistrate's court was also not examined to Crl.Appeal No. 923 of 2002 -:5:- show that it was the very same samples that were received in Court which were forwarded to the Chemical Examiner in a tampler proof condition which is a requirement in law as has been laid down in State of Rajasthan v. Daulath Ram- AIR 1980 SC 1314 , Sasidharan v. State of Kerala – 2007 (1) KLT 720 and Valsala v. State of Kerala - 1993 (2) KLT 550 SC . This is a case in which the functionary in-charge of the conduct of the prosecution has either been negligent or ignorant of the requirements to be satisfied before he could secure a conviction. It is not enough that the properties are produced before Court. There should be a request by the Investigating Agency to send the properties for chemical analysis and the consequential link evidence showing that the properties eventually reached the hands of the Chemical Examiner in a tamper proof condition. In the absence of such link evidence it cannot be held that Ext.P6 report pertains to the very same samples allegedly taken from the two jerry cans said to have been possessed by the accused on 15-5-1998. Such being the position, the conviction recorded and the sentence passed by the Court below overlooking he above aspects cannot Crl.Appeal No. 923 of 2002 -:6:- be supported. The appellant is found not guilty of the offence punishable under Sec. 55 (g) of the Abkari Act and is accordingly acquitted thereunder. He shall be set at liberty forthwith. In the result, this appeal is allowed as above . The amount, if any, deposited before the courts below towards fine shall be refunded to the appellant. Dated this the 16th day of September 2009. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ ani. Crl.Appeal No. 923 of 2002 -:7:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 923 of 2002 * * * * * * * * * * * * * * * * * * Dated: 16-09-2009 JUDGMENT