IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 707 of 2006() ----------------------------- CRA.23/2002 of III ADDL.SESSIONS COURT, KOLLAM SC.259/1998 of ASSISTANT SESSIONS COURT, KOTTARAKKARA .................... REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- SHAJAHAN, S/O.SULTHAN, PUTHENVEEDU, MUMMOOLA, PUNNALA, PATHANAPURAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.THOMAS PHILIP RESPONDENT(S)/ RESPONDENT/STATE & COMPLAINANT --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.707 OF 2006 ------------------------------------------ Dated 20th January 2009 O R D E R Revision petitioner is the accused in S.C.259/1998 on the file of Assistant Sessions Judge, Kottarakara. He was convicted and sentenced for the offence under Section 55(a) of Abkari Act. Revision petitioner challenged the conviction before Sessions court, Kollam in Crl.A.23/2002. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and modified the sentence to rigorous imprisonment for three months and fine of Rs.1,00,000/- and in default rigorous imprisonment for one month. Revision 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 according to the prosecution revision petitioner was arrested on the morning of 9/10/1997 and 1½ half liters of illicit liquor was seized in MO.1 can along with a glass. CRRP 707/06 2 But as the property list available in the court records show the contraband article was produced before the court only on 31/10/1997 and there is no evidence in whose custody the contraband article was from 9/10/1997 till 31/10/1997 and in such circumstances, courts below were not justified in convicting revision petitioner as the possibility of tampering with the contraband article cannot be ruled out as held by this court in Narayani v. Excise Inspector (2002 (3) KLT 725) and Rajendran v. State of Kerala (2007 (1) KLT 971). Learned counsel also pointed out that even though it is the prosecution case that along with MO.1, a glass was also seized, no glass was produced before the court and though PW5 Sub Inspector deposed that glass was broken and therefore was not produced, no report to that effect was filed and therefore the case should not have been believed. Learned counsel also argued that as per Ext.P1 mahazar arrest of revision petitioner and seizure of MO.1 was in the presence of PW1 and one Binu but that Binu was not even cited as a witness and PW1 turned hostile to the prosecution and though PW3 was examined, he is not an attesting witness to the mahazar and in the light of the evidence courts below should CRRP 707/06 3 not have relied on the evidence of official witness and should have found that revision petitioner was not arrested and contraband article was not seized from revision petitioner on the morning of 9/10/1997 as alleged. Learned counsel finally submitted that in any case, in the absence of a case that revision petitioner was carrying illicit liquor for the purpose of export or import offence under Section 55(a) of Abkari Act is not attracted as held by this court in Mohanan v. State of Kerala (2007 (1) KLT 845) and Surendran v. Excise Inspector (2004 (1) KLT 404). 4. As per Ext.P1 mahazar and the evidence of PW5 corroborated by the evidence of PW2, revision petitioner was arrested and contraband article was seized on 9/10/1997. Ext.P2 FIR along with Ext.P1 seizure mahazar were received by the court on 9/10/1997 as is clear from the endorsement of the Magistrate. So also revision petitioner was produced before the learned Magistrate on 9/10/1997 and was remanded. But contraband article seized under Ext.P1 was not produced before the Magistrate on that day. Property list establish that sample along with Mo.1 was produced before the court only on 31/10/1997. There is absolutely no evidence as CRRP 707/06 4 to who was in custody of the contraband article from 9/10/1997, the date of seizure till 31/10/1997 when it was seen produced before the court. As held by this court in Narayani's case (supra) and Rajendran's case (supra) possibility of tampering with the contraband article cannot be ruled out, in the absence of evidence to prove that contraband article was under the safe custody of either PW5 or the court. Definitely, prosecution should have explained under whose safe custody was the article from the time of seizure till its production. In the absence of evidence as to who was in custody of the article, much less that it was under the safe custody, as held by this court possibility of tampering with the sample cannot be ruled out and for that reason conviction is bad. 5. Added to this, learned counsel pointed out that there is violation of the relevant provisions of paragraph 34 of Excise Manual (Kerala) as considered by this court in Rajendran's case (supra). There is force in the submission. More over, as held by the Division Bench of this court in Surendran's case (supra) and Mohanan's case (supra) a conviction under Section 55(a) of Abkari Act will not stand in the absence of a case CRRP 707/06 5 of illegal import, export or transport. Prosecution has no case that revision petitioner was possessing 1½ liters of illicit liquor either for illegal import, export or transport and for that reason also conviction for the offence under Section 55(a) is not sustainable. In such circumstances, conviction of revision petitioner is set aside. Revision is allowed. Conviction of the revision petitioner for the offence under Section 55(a) by Assistant Sessions Judge, Kottarakara in S.C.259/1998 as confirmed by Additional Sessions Judge in Crl.A.23/2002 is set aside. Revision petitioner is found not guilty. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.