IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 Crl.Rev.Pet.No. 448 of 2004(A) ------------------------------------------------- CRA.210/2001 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.240/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER/ACCUSED: OMANA, POZHICKAL VEEDU, KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT/COMPLAINANT: THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.448 of 2004 -------------------------- ORDER Revision petitioner, the accused in C.C.No. 240/1996 on the file of Judicial First Class Magistrate's Court-I, Alappuzha, filed this revision challenging the conviction and sentence for the offences under Sections 55(a) and (b) of Kerala Abkari Act, as confirmed by Additional Sessions Judge in Crl.A.No.210/2001. 2. Learned counsel appearing for the petitioner is absent. Learned Public Prosecutor was heard and perused the records of the courts below. 3. Prosecution case is that on 7.1.1996, PW1, the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Alappuzha, along with excise party, including PW2, the Excise Guard, was on patrol duty. They reached near Holy Family High School, Kattoor, Kalavoor at about 10 a.m. On getting information that petitioner is CRRP 448/04 2 manufacturing illicit liquor at her house, they reached the house and found the petitioner distilling illicit arrack. MO1 Aluminium pot, MO2 Aluminium vessel with pipe, MO3 Aluminium pot, where wash was kept, MOs 4 and 5 bottles, where the distilled arrack was kept and MO6 utensil were seized after preparing Exhibit P2 mahazar. As per Exhibit P2 mahazar, PW1 took a sample of wash in a 750 ml. bottle and sealed the other bottle containing 750 ml. of distilled arrack and arrested the petitioner and released her on bail and reached the excise Office and prepared Exhibit P4 occurrence report and registered Crime No.1/1996 of Alappuzha Excise Range. The seized material objects were produced before the court including the sample. Exhibit P5 report was obtained on chemical examination of the sample. After completing the investigation, charge was laid. 4. Petitioner pleaded not guilty. Prosecution examined PWs 1 to 4 and marked Exhibits P1 to P5. On the side of the petitioner DW1 was examined. CRRP 448/04 3 5. Learned Magistrate, on the evidence, found the petitioner guilty and convicted and sentenced her. In appeal, learned Additional Sessions Judge confirmed the conviction and sentence. 6. On going through the evidence and the records, it is difficult to sustain the conviction. Evidence of PWs 1 and 2 with Exhibit P2 mahazar establish that PWs 1 and 2 found the petitioner distilling illicit arrack using wash and MOs 1 to 3 and 6 are the vessels and the apparatus. PW1 also found two bottles of 750 ml. each. In one bottle, there was 500 ml. of distilled arrack and in the other, there was 750 ml. of hot distilled arrack. As per Exhibit P2 mahazar, 750 ml. bottle, containing hot distilled arrack was taken as sample and in another 750 ml. bottle, wash, out of the wash contained in the pot, was taken as sample and both the bottles were sealed. Exhibit P3 is the search list, which was produced along with Exhibit P2 mahazar and the charge sheet, before the court. As per Exhibit P3 search list, what was produced CRRP 448/04 4 before the court, apart from the vessels and apparatus, are a 750 ml. bottle containing 500 ml. of illicit arrack as Item No.6 and a 750 ml. bottle, containing 750 ml. of illicit arrack. The bottle of wash, which was sealed, is not seen produced. Item No.6 bottle was not the sealed bottle as is clear from Exhibit P2 mahazar. Evidence of PW2 shows that he identified MO4 as the bottle containing 500 ml. of illicit arrack, which was seized in 750 ml. bottle as stated in Exhibit P2 mahazar. He identified MO5 as the 750 ml. bottle containing illicit arrack which was seized under Exhibit P2 mahazar, which, as per the evidence, was sealed. If any sample was taken out of MO5 bottle, then PW1 could not have found 750 ml. of arrack in that 750 ml. bottle. As stated earlier, the other sample of wash taken as per Exhibit P2 mahazar was not produced in court as is clear from the property list. No evidence was adduced to show what happened to the wash taken as sample. Exhibit P5 is the chemical analysis report obtained on examination of CRRP 448/04 5 the samples. It shows that two sealed bottles were received at the Laboratory, each containing 180 ml. The first bottle contained 180 ml. of clear and colourless liquid alleged to be illicit arrack. The second was a sealed bottle containing 180 ml. of brownish turbid liquid with dirty sediments alleged to be wash. Therefore, the said sample could have been prepared only from the wash. If that be so, there should be evidence to prove that wash, which was seized, was produced in court and thereafter 180 ml. sample was taken from the said bottle. As stated earlier, the property list does not show even the sample of wash, taken in a 750 ml. bottle, was produced before the court, much less, any sample was prepared from the bottle. Therefore, the 180 ml. of bottle of wash received at the Laboratory, produced as sample, cannot be a sample prepared from the wash seized in this case. Similarly, if 180 ml. of illicit arrack was taken as a sample prepared from MO5 bottle, it would not have contained 750 ml. of arrack, as deposed by CRRP 448/04 6 PW1, when he was examined. There is no evidence to show that any sample was taken or even any such sample was prepared. Moreover, though the seizure was on 7.1.1996, the sample, the property list and the mahazar reached the court only along with the charge sheet, which was returned and re-presented, only on 9.4.2006. Who has been in custody of the seized articles till then was also not disclosed. In such circumstances, based on Exhibit P5 report, petitioner cannot be convicted. Hence, conviction can only be set aside. Revision is allowed. Conviction of the petitioner by Judicial First Class Magistrate-I, Alappuzha in C.C.No.240/1996, as confirmed by Additional Sessions Judge in Crl.A.No.210/2001, is set aside. Petitioner is found not guilty of the offences. She is acquitted. 6th August, 2010 (M.Sasidharan Nambiar, Judge) tkv