IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 1156 of 2000() ------------------------------ CRA.220/1998 OF I ADDITIONAL SESSIONS COURT, KOZHIKOE CC.693/1996 of JUDL.MAGISTRATE OF FIRST CLASS,QUILANDY .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- HARIDASAN, S/O.CHATHU, KIZHAKKAMANNATH HOUSE, PANAYI AMSOM, BALUSSERY DESOM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. THE EXICSE INSPECTOR, BALUSSERY. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.1156 of 2000 -------------------------------------- Dated this the 25th day of September, 2008. ORDER A complaint was preferred against the revision petitioner in the court of Judicial First Class Magistrate, Quilandy alleging that he committed offences punishable under Sections 55(a) and 67(b) of the Abkari Act. The case is that on 30.9.1995 at about 5.15 a.m. the Preventive Officer and party found the revision petitioner carrying about 35 litres of illicit arrack in a can placed on a bicycle. The courts below concurrently found that the revision petitioner committed the offences, convicted and sentenced him to undergo imprisonment for six months and pay fine of Rs.1,000/-. Hence, this revision. 2. Heard both sides. Counsel for the revision petitioner submitted that the courts below were not correct in finding the revision petitioner guilty on the evidence on record. 3. PW1, the Preventive Officer claimed that he detected the offence on 30.9.1995 at about 5.15 p.m.. He stated that the revision petitioner was riding a cycle which carried a plastic can containing about 35 litres of illicit arrack. He arrested the revision petitioner at the spot (and later released him on bail from the Excise Office). Ext.P1 is the mahazar said to be prepared by PW1. He identified MOs 1 and 2, the can in which the controband was Crl.R.P.No.1156/2000 2 allegedly carried and the rope with which the can was tide to the cycle. PW2, Excise Inspector is said to have prepared the complaint. The contention of the revision petitioner is that he was falsely implicated in the case making use of abandoned articles. 4. Going by the version of PWs 1 and 2, the former had produced the crime and occurrence report and the material objects before the then Excise Inspector, Bhaskaran Nair who in turn is said to have produced the same in the court. Ext.P2, the crime and occurrence report reached the court only on 4.10.1995. Though it is not marked in the evidence, the list of property shows that the material objects were received in the court on 16.10.1995. Bhaskaran Nair who is said to have been in custody of the material objects and produced the same before the court is not examined. It is also revealed from the evidence that though according to PW2, when the Preventive Officer (PW1) detected the offence prepared the mahazar and handed over the same to the Excise Inspector the latter is expected to initial the mahazar, Ext.P1 does not show that the Preventive Officer or any other officer in the Excise Officer had received Ext.P1. It does not contain the initial of any such officer. So much so, it is not clear whether Ext.P1 had actually been received by the Excise Inspector (Bhaskaran Nair). It is also not clear when Ext.P1 reached the court. The cycle said to be seized from the revision petitioner is not produced in the court. It is Crl.R.P.No.1156/2000 3 said to be produced before the Assistant Excise Commissioner, Kozhikode. In these circumstances, non-examination of Bhaskaran Nair assumes importance (It is not clear why Bhaskaran Nair was not examined). 5. Though in Ext.P1, one Sukumaran is shown as an attestor he was not available for examination. It is seen from the order sheet of the trial court that since Sukumaran had gone abroad he could not be examined. For no fault of the revision petitioner the evidence of attestor is not available before court and the revision petitioner lost the opportunity to cross examine the so-called attestor with reference to his defence. In such circumstances, at least one of the Guards who is said to have accompanied PW1 should have been examined. CW2 is said to have accompanied PW1 for patrol duty and to have been present at the time of detection of the offence. It is seen from the order of the trial court that though CW2 was present in the court, he was given up by the prosecution. Thus, the revision petitioner lost the opportunity to cross-examine CW2 also. 6. Though corroboration is only a rule of prudence, in the facts and circumstances of this case some sort of corroboration is required for the evidence of PW1. Based on the evidence of PW1 alone when corroborative evidence could have been let in, it is not safe to sustain the conviction. Crl.R.P.No.1156/2000 4 Revision Petition is therefore, allowed. Conviction and sentence imposed on the revision petitioner are set aside and he is acquitted of the charges . Bail bond is cancelled. Crl.M.P.No.6055 of 2000 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1156/2000 5 Thomas P.Joseph, J. Crl.R.P.No.1156 of 2000 ORDER 25th September, 2008.