IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 2337 of 2008() ------------------------------ CRA.229/2001 of ADDL.SESSIONS COURT, THODUPUZHA CC.317/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, DEVIKULAM .................... REVISION PETITIONERS/APPELLANT/2ND ACCUSED: ------------------------------------------------------------------------------- SANTHOSH, S/O.KOCHUNNY, AMBADU PARAMBIL, MAMBRA KARA, KORATTI VILLAGE, MUKUNDAPURAM TALUK, TRISSUR DISTRICT. BY ADV. SRI.S.SREEKUMAR RESPONDENT:RESPONDENT:COMPLAINANT: --------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI. P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2337 OF 2008 ............................................ DATED THIS THE 16th DAY OF OCTOBER, 2008 ORDER Petitioner is the second accused in C.C.317 of 1998 on the file of Judicial First Class Magistrate, Devikulam. He, along with first accused, were chargesheeted by Excise Inspector, Devikulam alleging that they committed offences under Section 55(a) of Abkari Act. The presence of first accused could not be procured for trial and therefore only petitioner was tried by learned Magistrate. Prosecution case was that on 9.12.1996 at about 8 pm, while PW1, the Preventive Officer, Chinnar Excise Check Post, along with PW2, the Excise Guard and PW3, the Sales Tax Inspector, was on duty at Chinnar Excise Check Post, Lorry KRE 8035, driven by first accused, came through the check post. When it was stopped and inspected, it was found that a secret tank below the driving seat and back of cleaners seat was found and when opened, it contained spirit. PW1, on further inspection, found another tank on the top of the lorry which also contained spirit being transported in the vehicle. Petitioner being the cleaner, was seated inside the lorry. After preparing Ext.P1 scene mahazar, accused were arrested and the CRRP 2337/2008 2 lorry with the spirit was seized. PW1 produced it before Excise Range Office, after preparing Ext.P2 occurrence report. After completing the investigation, charge was laid. Accused were released on bail by Excise Inspector, K.V.Suresh, who was not examined before the learned Magistrate. Petitioner pleaded not guilty. 2. On the evidence of Pws 1 to 4 and Exts.P1 to P12, learned Magistrate found the petitioner guilty. He was convicted and sentenced to simple imprisonment for one year and a fine of Rs.3000/- and in default, simple imprisonment for three months for the offence under Section 55(a) of Abkari Act. Petitioner challenged the conviction and sentence before Sessions Court, Thodupuzha in Crl.A.229 of 2001. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard and the records were perused. 4. Learned counsel argued that though Ext.P3 report of the Chemical Examiner was relied upon by the courts below to find that spirit was transported in the lorry, there is no evidence CRRP 2337/2008 3 to prove that any sample was taken from the spirit which was allegedly transported in the lorry. It was pointed out that Ext.P1 mahazar shows that no sample was prepared and Pws 1 and 2, Excise Officials also deposed that sample was not prepared at that time. PW4 also did not depose that any sample was taken. It was argued that even though Ext.P3 establishes that sample examined at the Laboratory and it is found to be rectified spirit, there is no evidence to prove that sample which was examined at the Laboratory was the sample taken from the lorry seized and in such circumstances, based on Ext.P3, petitioner cannot be convicted. Learned counsel also argued that there is no evidence to connect petitioner with the lorry seized and even according to the courts below, Excise Inspector, without proper verification, released first accused on bail and it was found out later that the address of not only the first accused, but even his sureties are not correct and in such circumstances, in the absence of evidence to prove that petitioner was in control of the articles carried in the lorry, his conviction is not sustainable. Learned counsel also pointed out that articles seized was not produced before court and no explanation was offered for the non production. CRRP 2337/2008 4 5. Ext.P1 seizure mahazar itself shows that as it was found difficult at the time of seizure, no sample was prepared. PW1, the Preventive Officer, who effected the seizure also deposed that he did not prepare any sample at the time of seizure and after seizure and arrest of the driver and cleaner of the lorry, they were produced before the Excise Range Inspector, N.S.Suresh, along with the lorry containing spirit. PW2, Excise Guard also deposed that sample was not produced. PW3, Sales tax Officer also has no case that any sample was prepared. PW4, who was the only other witness examined, has no personal knowledge with regard to the seizure or investigation. He deposed only on the materials available in the Case Diary. He has also no case that any sample was prepared from the spirit seized from the lorry. In such circumstances, there is no evidence to connect the sample forwarded to the Chemical Analysis Laboratory or examined or Ext.P3 report was prepared. Admittedly either the spirit or lorry was produced before the court. Instead only a report was filed with regard to seizure before the court. It was stated that the articles are kept at the Excise Office. Therefore as rightly argued by learned counsel, there is absolutely no evidence to connect the sample with the CRRP 2337/2008 5 article seized from the lorry forwarded and examined as seen in Ext.P3. Therefore, based on Ext.P3, it is not possible to convict the petitioner on the ground that rectified spirit was illegally transported in the lorry as alleged by the prosecution. Though learned Public Prosecutor pointed out that Pws 1 and 2 deposed that by the smell and taste, they could find out that the tank contained spirit, the very case that sample was sent for chemical analysis establish that Excise Officials were not satisfied with the detection by taste or smell. Moreover, it is not safe to convict the petitioner based on the oral evidence alone that article found in the lorry was spirit either by taste or smell. In such circumstances, conviction of petitioner for the offence under Section 55(a) of Abkari Act is not sustainable. 6. Revision petition is allowed. Conviction of petitioner in C.C.317 of 1998 as confirmed in Crl.A.229 of 2001 is set aside. Petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE lgk/-