IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 Crl.Rev.Pet.No. 923 of 2000 --------------------------------------------- CRA.246/1998 of SESSIONS COURT, KOZHIKOE CC.250/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------------- DAMODARAN S/O MANGADUPURAYIL VALLIYYAN PUTHUR AMSOM DESOM KOZHIKODE TALUK BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/RESPONDENT/ACCUSED & STATE: ---------------------------------------------------------------------------------- 1. THE EXCISE INSPECTOR THAMARASSERY 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON 27/03/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.923 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March 2008 ORDER Petitioner who has been concurrently found guilty under Section 58 of the Abkari Act by the trial court as well as the appellate court impugns the said order of conviction and sentence in this revision petition. On his conviction the trial court had sentenced the petitioner to undergo simple imprisonment for six months and to pay a fine of Rs.15,000/- and in default to undergo simple imprisonment for 45 days. In appeal, the above order of conviction and sentence was confirmed. 2. The prosecution case in brief was that on September 15, 1995 PW1, the Preventive Officer attached to Thamarassery Excise Range along with two excise guards had apprehended the petitioner with 2 litres of illicit arrack in his possession which he was found carrying in M.O.1 plastic can. The contraband was seized under a mahazar after lifting sample there from. On analysis, it was found that the sample contained Crl.R.P.No.923 OF 2000 :: 2 :: Ethyl Alcohol. Petitioner was charge sheeted thereafter for the offence punishable under Section 58 of the Abkari Act. The prosecution had examined PWs 1 to 4 and Exts.P1 to P5 and M.O.1 were marked on its side. The trial court found that the prosecution had succeeded in proving the charge against the accused. Accordingly, he was convicted and sentenced as mentioned earlier. The appellate court confirmed the said order of conviction and sentence. 3. PW1 deposed before the court that he and two guards who accompanied him on patrol duty had found the petitioner carrying M.O.1 plastic can having a capacity of 5 litres. On examination of the contents of the can, it was found that it contained two litres of illicit arrack. The contraband was seized in the presence of the witnesses. 180ml. of the liquor was taken as sample after complying with the formalities. Petitioner was arrested and released on bail. PW2, the guard, who accompanied PW1 stated in his evidence that he was present at the time when the contraband was seized and sample was taken. He further stated that he had seen PW1 seizing M.O.1 Crl.R.P.No.923 OF 2000 :: 3 :: can from the petitioner and arresting him. He also stated that he was present when Ext.P1 mahazar was prepared. But he stated that he had signed in the mahazar at the market. PW4 was the Excise Inspector attached to Thamarassery range at the relevant point of time. He stated that PW1 had produced M.O.1 as well as the sample bottle and other relevant records before him at about 7.30 p.m. on September 15, 1995. He had registered excise Crime No.96/95 and Ext.P3 occurrence report was prepared and forwarded it to the court along with a requisition. The sample was forwarded to the analyst who issued Ext.P5. 4. It is pointed out by the learned counsel that PW4 had admitted in his cross examination that Ext.P1 mahazar was produced before the court only on October 9, 1995. He further conceded that the seal on Ext.P1 revealed that it had been received only on October 13, 1995. No evidence was adduced by the prosecution to show that the sample bottle and the contraband liquor had been kept in safe custody at the Excise Office till they were produced before the court. Similarly, there Crl.R.P.No.923 OF 2000 :: 4 :: was no evidence on record to show that the sample bottle had been kept in safe custody in the court below till it was despatched to the public analyst on November 23, 1995. The delay in forwarding the sample to the court and from these to the Analyst was not explained. However, PW1 admitted that he had put the crime number on the label after coming back to the office. He had also stated that the fact that seal was put on the sample bottle was not recorded in Ext.P1 mahazar. In short, there was no satisfactory evidence to show that there was proper sampling or that sample bottle had been kept in safe custody till it was forwarded to the court or from there to the public analyst. Having regard to the entire facts and circumstances, I am satisfied that the courts below were not justified in holding the petitioner guilty. Therefore, the order of conviction and sentence passed against the petitioner is set aside. Petitioner is acquitted. Revision petition is allowed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.923 OF 2000 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.923 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 27th March 2008