IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1511 of 2003() ----------------------------------- SC.289/2001 of ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA. .................... APPELLANT/ACCUSED: ---------------------------------- XAVIER @ XAVI, S/O. JOSEPH, PUTHANPURACKAL HOUSE, MANIYAMPETTI BHAGAM, NETTITHOZHU KARA, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK. BY ADV. MR.GRASHIOUS KURIAKOSE RESPONDENT/COMPLAINANT: --------------------------------------------- STATE - SHO VANDANMEDU POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1511 OF 2003 ------------------------------ Dated this the 6th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.289/2001 of the Additional Sessions Judge, (Adhoc-II), Thodupuzha. The accused was charged sheeted under Section 55(a) of the Abkari Act and was convicted there under and sentenced to undergo R.I for a period of one year and to pay a fine of Rs. One lakh and in default, to undergo further imprisonment for a period of two months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in the appeal are whether the prosecution has succeeded in proving the guilt of the accused (2) Is there anything to interfere with the decision rendered by the court below. 3. Points 1 and 2: It is the case of the prosecution that on 10.8.1999 at about 1.15 p.m, PW5, the Sub Inspector of Police had 2 CRL.A.NO.1511/03 apprehended the accused and he was found in possession of a Can which contained illicit arrack and by taste and smell, it was found that the alleged contraband was illicit arrack. According to the prosecution, two 180 ml bottles were taken and sample of 150 ml each was collected and the samples were sealed and thereafter it had been found that the sample contained percentage of ethyl alcohol by volume of 24.78 and 29.80 respectively. 4. The learned counsel for the appellant had very strongly contended before me that there was a huge delay in producing the sample before the court and in the backdrop of the report of the chemical examiner the samples alleged to be taken from the same container shows different percentage of ethyl alcohol, he would contend that this strengthen the contention that something is wrong with the investigation. Admittedly, the apprehension is on 10.8. 1999. He had been arrested and produced before the court immediately. According to the prosecution, sample was taken from the scene of occurrence and sealed, but the samples had reached the court only on 25.9.1999, ie., after 45 3 CRL.A.NO.1511/03 days. When confronted with this difficult situation, the prosecution would allege that as there was some inconvenience, there was some delay. It is admitted in the cross examination that they used to come to the court every day. To carry 7 liter arrack to the court one need not require a very big vehicle and it has also come out in evidence that when the vehicles were not in working condition other vehicles are taken to attend other jobs. It is true that the samples which had been sent for chemical analysis were brought back and they are marked as MO3 series. Under ordinary circumstances, I would have been inclined to state that no prejudice has been caused to the accused. But a peculiar situation had arisen in the case. Admittedly, samples are taken from one container. It is alleged to be transferred into 2 bottles and sent for chemical analysis. One bottle contained percentage by volume of ethyl alcohol at 24.78 and other at 29.80 making a marked difference of 5.02%. Under ordinary circumstances, when sample is taken from the same container, one cannot expect such a difference in the ethyl alcohol percentage. So, it goes against the prosecution and it is not 4 CRL.A.NO.1511/03 attempted to be explained at all. There was a duty cast upon the prosecution to prove the same. In the absence of any scientific evidence with respect to the same, the court cannot ignore this huge difference. If it was a negligible difference, I would have ignored it. But it is not so in this case. One argument that could be raised is, sample if taken before shaking and after shaking the containers may show some difference. But, we do not have any evidence in that regard. It is in these background, the long delay of 45 days is to be considered. It is true that PW5 had spoken to the effect that even when he goes out, he takes the key of the thondy room. I do not believe such a version tendered by PW5 knowing the practice in our State. But, at the same time, PW5 himself had admitted that there are other thondy articles also kept in the room. One cannot be sure that what degree of care has been there in handling. So, it will create suspicion in the mind of the court. When a reasonable suspicion is created in the mind of the court, necessarily the benefit of doubt has to go the accused. The explanation tendered by PW5 regarding the delay is not acceptable in the backdrop of the materials which 5 CRL.A.NO.1511/03 I have discussed earlier. Therefore, the inevitable conclusion is to grant the benefit of doubt to the accused and acquit him. Therefore, the criminal appeal is allowed. The conviction under Sections 55(a) and 8(2) of the Abkari Act is set aside and he is found not guilty of the offence alleged under that sections and he is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1511/03 7 CRL.A.NO.1511/03