IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Crl.Rev.Pet.No. 312 of 2000 ------------------------------------- CRA.23/2000 of SESSIONS COURT, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- PALOT VEETTIL MANIKKM W/O AMBADI KANIYAMTHOL KAYYUR VILLAGE HOSDRUG TALUK BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.312 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August 2008 ORDER Petitioner was tried for the offence punishable under Section 55(g) of the Abkari Act. The trial court found the petitioner guilty and she was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,00,000. In default of payment of fine, petitioner was directed to undergo simple imprisonment for a further period of six months. The above order of conviction and sentence was confirmed in appeal by the sessions court. Hence this revision petition. 2. The prosecution case in brief was that PWs1 and 2, the Sub Inspector and Police Constable respectively, attached to Cheemeni Police Station had, on a search made at the residence of the petitioner, recovered 5 litres of Wash contained in M.O.1 can. According to the prosecution, the contraband was recovered from the residence of the petitioner Crl.R.P.No.312 OF 2000 :: 2 :: at about 3.00 p.m. on February 8, 1998. The search was made after preparing a search memo. Two samples of 375 ml each were lifted from the contraband which on analysis were found to have contained Ethyl alcohol. 3. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P8 and M.O.1. On the side of the defence, DW1 was examined and Ext.D1 was marked. 4. The learned Assistant Sessions Judge, on an evaluation of the oral and documentary evidence, came to the conclusion that the prosecution had succeeded in proving that the accused had kept in her possession 5 litres of Wash at her residence bearing No.KCP VI/341 at Kayyur Village. It was further found that sampling of the contraband and other statutory formalities were properly carried out by PWs 1 and 2. 5. The learned Sessions Judge concurred with the above findings entered by the trial court and confirmed the order of conviction and sentence. 6. Sri.V.N.Achutha Kurup, learned senior counsel, submits that the findings entered by the courts below are Crl.R.P.No.312 OF 2000 :: 3 :: totally illegal and perverse. He points out that there was no satisfactory evidence to show that the house in question belonged to the petitioner. Ext.D1 ration card clearly indicated that petitioner was residing with her mother and family in house No.KCP VI/318. It is also pointed out by the learned counsel that the report of the analyst would show that the content of alcohol in the two samples was at variance. While in one sample, the percentage of ethyl alcohol was 10.37, in the other it was 9.84. Learned counsel also points out certain infirmities in the evidence of prosecution with regard to forwarding of the sample to the court and also regarding the alleged proper custody of the same. 7. At the very outset, it has to be noticed that PW1 who was admittedly the detecting officer had himself conducted the investigation. This could not have been done under normal circumstances. According to PW1, he had proceeded to the residence of the accused along with PW2. In cross examination, PW1 admitted that he had not forwarded the samples to the court. PW2 did not also have such a case. Then Crl.R.P.No.312 OF 2000 :: 4 :: who forwarded the samples to the court has remained a mystery. In this context, it may also be noticed that the search memo, which has been marked as Ext.P3, is seen to have been received at the court on February 7, 1998. Similarly, Ext.P1 report of PW1 is also seen to have been received by the court on February 7. It may be remembered that the alleged detection was on February 8, 1998. No explanation has come forth from the prosecution in this regard. Of course, Ext.P2 FIR is seen to have been registered at the Police Station on February 8, 1998 and that too only at 7.30 p.m. Distance between the alleged scene of occurrence and the Police Station is only 2 Km. There is also no explanation for the delay in despatching the FIR to the court. In the absence of any evidence to show as to when the samples were forwarded to the court and also who had kept them in proper custody, I am satisfied that the petitioner is entitled to get the benefit of doubt. 8. Further, as mentioned earlier, the investigation conducted by the detecting officer will cut at the root of the Crl.R.P.No.312 OF 2000 :: 5 :: prosecution case. The evidence of PW6 with regard to the ownership of the residence is also far from satisfactory. As indicated earlier, Ext.D1 ration card would show that petitioner was residing in KCP VI/318 whereas the recovery was effected from KCP VI/341. Ofcourse, PW6 had stated that KCP VI/341 stood in the name of the petitioner. But keeping in view the entire facts and circumstances and the evidence adduced by the prosecution in this case, I am not persuaded to rely on the evidence of PW6 to come to the conclusion that the alleged recovery was effected from the residence of the petitioner. Therefore, I am satisfied that the order of conviction and sentence passed against the petitioner is liable to be set aside. I do so. Revision petition is allowed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.312 OF 2000 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.312 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 14th August 2008