IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 CRL.A.No. 1397 of 2003() -------------------------------- SC.264/2001 of ADDL. SESSIONS COURT (ADHOC I ), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------- 1. SALI S/O. NARAYANAN, VARIKKATHARAPPEL HOUSE, RAJAKAD P.O., RAJAKAD. 2. MANOJ S/O. DAMODARAN, AGED 26 YEARS, KANNOTHU HOUSE, VELLATHOOVAL. BY ADV. MR.A.J.JOSE(AEDAIODI) RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, RAJAKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1397 OF 2003 ------------------------------ Dated this the 29th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.264/2001 of the Additional Sessions Judge, Adhoc-I, Thodupuzha. The accused was charge sheeted under Sections 55(a) and (b) of the Abkari Act and was found guilty under Section 55(a) and directed to undergo imprisonment for 3 months and to pay a penalty of Rs. One lakh. At the outset, I may like to state that the prosecution as well as the court below had not done things properly which is expected of them in a sessions trial. The accusation against the accused is to the effect that they were found in possession of Indian made foreign liquor in the shop conducted by the first accused, of which, the 2nd accused was the salesman. According to the prosecution, the Sub Inspector had received an information that accused No.1 was selling Brandy unauthorisedly, and therefore, he prepared a search memorandum and after dispatching it to the court, proceeded 2 CRL.A.NO.1397/03 to the place and was able to find Brandy bottles placed on a table inside the north western room of the building. They were able to detect 375 ml capacity bottles four in number with 100ml liquor, 130 ml Honeybee Bejoice, Newmaster brandy, Old Port XXX Rum, empty bottles, empty glasses, empty soda bottles and a sum of Rs.703/=. A search list was prepared. In the court below, Pws1 to 4 were examined, Exts.P1 to P5 and Mo1 series glass was marked. 2. I feel that the finding of the court below under Section 55(a) of the Abkari Act will not lie in the light of a Division Bench ruling reported in Mohan v. State of Kerala (2007(1) KLT 845). In order to attract Section 55(a) of the Abkari Act, the court held that Section 55(a) deals with only illegal import, export or transport, transit etc. on such import or export, Section 55(a) is applicable, only when persons illegally import or transport liquor or in possession of liquor while illegally importing. So, the possession mentioned in Section 55 (a) of the Abkari Act is qualified with the word while illegally importing by the Division Bench of this Court. In this case, 3 CRL.A.NO.1397/03 there cannot be any doubt that the possession was not in the process of importing or transporting or any possession while illegally importing. When it is so, a charge under Section 55(a) will not lie and it has to be set aside. The section that can be attracted will be Section 55(i) of the Abkari Act. There is no charge under Section 55(i) of the Abkari Act and the accused have not been made to answer that charge. It is a curable defect for which the case can be remanded and directed to deal it afresh. But, whether it is necessary in the facts and circumstances of the case is the point to be considered now. Under the Governmental notification, a prescribed quantity is to be taken as sample for the purpose of chemical examination. As per Rule 8(1)(a) of the Foreign Liquor Rules, 180 ml is required for the purpose of chemical examination. In this case, different kinds of liquor are described in the seizure mahazer. Sample of these liquors is poured into one bottle and a sample of 80 ml is taken. So, it means neither the statutorily required quantity is taken nor separate sample is taken though the quantity is inadequate. It is true that, a 4 CRL.A.NO.1397/03 Division Bench of this Court had held that, it is not necessary in all the cases to take samples from each and every bottle. If the bottles are of the same nature, sample can be taken from one of the bottles or at random. It does not mean that when different kinds of liquor are seized, a consolidated sample can be taken and sent for chemical examination. So, it is in that background or backdrop, the quantity also assumes importance. When the mixture of all the liquids are taken together in a bottle as sample and as the report of the chemical analyst cannot be received, there is utmost procedural irregularity which would militate against the prosecution and if it is accepted, the same may cause prejudice to the accused. So, in such circumstance, the inevitable consequence is to give the benefit of doubt to the accused and to release him. Before parting with the case, I may like to point out that all is not well in this case with the investigating agency. I could have understood it, if they had taken smaller quantities because of the non availability in separate bottles but they did not do it. When they mixed it up and took it, they failed to take the 5 CRL.A.NO.1397/03 required quantity of sample as well and to crown all these things no charge is seen raised under Section 55(i) of the Abkari Act also. So, the inevitable result is acquittal. Therefore, the appeal is allowed and the conviction and sentence passed under Section 55(a) of the Abkari Act is set aside. The accused are found not guilty of the offences alleged and are acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1397/03