IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4641 OF 2007() ------------------------------ CRA.312/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA SC.732/2005 of ASSISTANT SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------------------- CHELLAPPAN, S/O. CHOTHI, VALLOOKKARIL VEEDU, KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE, KARTHIKAPPALLY VADAKKU PANCHAYATH, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 4641 OF 2007 ------------------------------------------ Dated this the 3rdday of December, 2008 O R D E R Revision petitioner was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- and in default simple imprisonment for four months for the offence under section 8(1) and 8(2) of Abkari Act. The conviction and sentence were confirmed by Additional Sessions Court, Alappuzha in Crl. Appeal 312 of 2007. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 22.10.2003 at about 6 p.m. PW1, the Assistant Excise Inspector, Karthikappally Excise Range Office along with PW2 the Preventive Officer, were on patrol duty. When they reached Karuvatta Vadakkummuri, revision petitioner was found walking along the road holding MO1 bottle. Getting suspicious revision petitioner was intercepted and MO1 bottle was examined and found that it contained arrack. PW1 seized MO1 bottle and took a sample in CRRP4641/07 2 350 ml bottle from the arrack found in MO1 bottle and sealed both the sample and MO1 bottle and arrested revision petitioner and prepared Ext.P1 mahazar. After preparing Ext.P2 arrest memo along with revision petitioner, MO1 and the sample bottle, PW1 reached the Excise Office and produced them before PW5, the Excise Inspector, who prepared Ext.P6 occurrence report, and registered crime 102/2003. Petitioner along with MO1bottle and sample were produced before the Magistrate. The properties were produced under Ext.P8 property list. On submitting the request the sample bottle was forwarded to Chemical Examiner's Laboratory, Thiruvananthapuram and obtained Ext.P9 report finding that ethyl alcohol was detected in the sample. After completing the investigation, charge was laid. Petitioner pleaded not guilty. Prosecution examined 6 witnesses and marked 9 exhibits and identified MO1. Though PWs 3 and 4 the independent witnesses to the seizure and attesting witnesses to Ext.P1 mahazar, were turned hostile, learned Assistant Sessions Judge relied on the evidence of PWs 1 and 2 and found that petitioner was holding MO1 containing arrack which was seized by PW1. Relying on Ext.P9 it was found that petitioner committed the offence under section 8(1) and (2) of Abkari Act. CRRP4641/07 3 He was convicted and sentenced accordingly. Learned Additional Sessions Judge in appeal, on reappreciation of evidence, confirmed the same. It is challenged in the revision. 4. Though learned counsel appearing for revision petitioner argued that when PWs 3 and 4 the independent witnesses turned hostile to the prosecution and did not support the prosecution case regarding the seizure, evidence of PWs 1 and 2 should not have been accepted by the Courts below, I cannot accept the arguments. Even if independent witnesses to the recovery or seizure turned hostile to the prosecution, so long as evidence of PWs 1 and 2 is credible and reliable, petitioner is not entitled to contend that he is to be acquitted for the reason that independent witnesses turned hostile. Learned Assistant Sessions Judge and learned Sessions Judge on appreciation of evidence found that there is no reason to disbelieve PWs 1 and 2. On going through their evidence I find no reason to take a different view. 5. But one fact was omitted to be taken note of by the Assistant Sessions Judge as well as learned Sessions Judge. The petitioner could be convicted only on establishing that he was in possession of arrack in MO1 bottle as claimed by PWs 1 and 2. CRRP4641/07 4 That could be found only based on Ext.P9 report. True, Ext.P9 report establish that the sample examined at the laboratory contains ethyl alcohol of 30.49% by volume. But the question is whether the identity of the sample examined at the laboratory is proved to be the one which was seized from the revision petitioner. 6. As per the evidence of PW1 corroborated by PW2 and Ext.P1 seizure mahazar, a contemporaneous record prepared at the time of seizure a sample was prepared and the sample bottle as well as MO1 containing the remaining part of the arrack were sealed then and there. Ext.P1 mahazar does not show that it was labelled at the scene of occurrence or that signature of either the revision petitioner or the attesting witnesses to Ext.P1 mahazar was obtained. But evidence of PW1 is that a label was affixed in both MO1 bottle and the sample bottle and signature of revision petitioner as well as attesting witnesses to Ext.P1 mahazar was obtained. But that version is not supported by Ext.P1. Ext.P8 is the property list by which MO1 and the sample bottle were produced before the Court after seizure. Ext.P8 only shows that MO1 and sample bottle of 375 ml containing 200 ml were sealed and produced before the Court. The sample seal CRRP4641/07 5 used for sealing was not produced. PW1 also did not depose that the sample seal was produced before the Court. Learned Assistant Sessions Judge relied on Ext.P9 report to hold that the sample examined at the laboratory is the same sample which was prepared by PW1 at the time of seizure. That finding was based on the recitals in Ext.P9 that the seal on the bottle was found intact and tallied with the sample seal provided. When there is no evidence to prove that the sample seal affixed by PW1 was produced before the Court, the sample seal found tallied intact at the chemical laboratory could only be the sample seal forwarded by the Court, which could only be the seal which was affixed by the Court at the time of forwarding it to the laboratory. At best Ext.P9 report establish that what was received at the laboratory is the sample which was sent from Judicial First Class Magistrate Court, Haripad. But it is insufficient to establish that the sample forwarded to the laboratory is the sample which was collected from the MO1 bottle seized from the revision petitioner. Unless the seal affixed on the sample was produced before the Court, along with MO1 and the sample bottle, it cannot be said that what was examined at the laboratory is the sample prepared by PW1 at CRRP4641/07 6 the time of seizure. There is no evidence that when the sample was produced before the Court, there was seal on the sample and the said seal tallied with the sample produced by PW1 and affixed on the sample at the time of seizure. There is absolutely no evidence on that aspect. Therefore it cannot be said that there is conclusive evidence to prove that the sample which was examined at the laboratory, based on which revision petitioner was convicted, is the sample which was prepared by PW1 at the scene of occurrence. In the absence of that evidence, conviction of the petitioner is not sustainable. Revision is allowed. Conviction and sentence passed by the Assistant Sessions Judge, Alappuzha in SC 732 of 2005 as confirmed in Crl. Appeal 312 of 2007 is set aside. Petitioner is found not guilty of the offence. He is acquitted. The bail bond executed by him stands cancelled. M. SASIDHARAN NAMBIAR, JUDGE Okb/-