IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 1157 of 2000() ------------------------------ CRA NO.156/1997 OF SESSIONS COURT, THRISSUR CC NO.219/1997 OF JUDICIAL FIRST CLASS MAGISTRATE, WADAKKANCHERRY REVISION PETITIONERS/APPELLANTS/ACCUSED: --------------------- 1. SALAM ALIAS ABDUL SALAM, S/O.BAVA, VALIYA PEEDIKA, S.R.K.NAGAR, PALAPPURAM, OTTAPPALAM VILLAGE, ERAKKOTTIRI DESOM, OTTAPPALAM TALUK. 2. HARIDAS, S/O.CHINNA, POOCHIKKAL VEETTIL, S.R.K.NAGAR, PALAPPURAM, OTTAPPALAM VILLAGE, ERAKKOTTIRI DESOM, OTTAPPALAM TALUK. BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.1157 of 2000 -------------------------------------- Dated this the 13th day of October, 2008. ORDER Heard both sides. 2. Revision petitioners were chargesheeted for offence punishable under Section 55(a) of the Abkari Act (for short, 'the Act') for alleged possession of 83 packets of illicit arrack on 18.8.1996 at about 4 p.m.. It is alleged that revision petitioners were found in possession of illicit arrack on the southern side of river Bharathapuzha at the place of occurrence. Courts below found that revision petitioners were in possession of the contraband. The appellate court modified the sentence awarded by the trial court. Learned counsel submits that prosecution has not established that revision petitioners were in possession of the contraband and hence conviction is not legal and proper. 3. Case is that while PW7, Sub Inspector and party were on patrol duty, they got information about unauthorised possession of illicit arrack by revision petitioners and reached the place at about 4 p.m. PWs 1 and 2 who are attestors in Ext.P1, mahazar for alleged seizure though admitted signing Ext.P1, did not support the prosecution. PW3 is an attestor in Ext.P3, mahazar for scene of occurrence prepared by PW4. Crl.R.P.No.1157/2000 2 4. PWs 5 to 7 are official witnesses who gave evidence regarding alleged seizure. They supported the prosecution. Ext.P1 is the mahazar prepared by PW7, Sub Inspector. MO1 is the plastic sack which allegedly contained 83 packets of illicit arrack. PW7 collected two packets out of that as sample. Argument advanced by learned counsel is that possession of the contraband with the revision petitioners is not proved. 5. Even as per PWs 5 to 7, the packets containing illicit arrack were kept in a plastic sack (MO1). In Ext.P1 it is not stated how the revision petitioners were exercising possession over the plastic sack containing the packets. PW6 stated that when himself and PWs 5 and 7 reached the place of occurrence, the plastic sack was kept nearby the revision petitioners and on seeing the police party, revision petitioners took to their heels. Evidence of PWs 5 and 7 is not in any way contrary to what PW6 stated. It has come in evidence that the alleged seizure was from near a bathing ghat on the Bharathapuzha river. If that be so, the mere fact that contraband was seen kept near the revision petitioners by itself cannot mean that they were in possession of the contraband. According to the revision petitioners they had been to that place to take bath. It is true that going by the evidence of PWs 5 to 7, revision petitioners had attempted to escape from the scene on seeing the police party. That by itself is not sufficient to warrant the conclusion that revision petitioners were in possession of the contraband. As such, conviction of the revision petitioners cannot stand. Sentence is also liable to be set aside. Crl.R.P.No.1157/2000 3 Resultantly, Revision Petition is allowed. Conviction and sentence imposed on revision petitioners are set aside and they are acquitted of the charges made against them. Bail bonds are cancelled. Crl.M.P.No.6060 of 2000 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1157/2000 4 Thomas P.Joseph, J. Crl.R.P.No.1157 of 2000 ORDER 13th October, 2008