IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 612 of 2000(B) ----------------------------------- CRA.316/1998 of SESSIONS COURT, THRISSUR CC.821/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER: --------------------------- KUNJAPPAN @ MATHAYI, S/O.VARGHESE, PERIKKAMATTATHIL PANGARAPPILLY DESOM, PANGARAPPILLY VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SMT.MINI JOHN PAREMALIL RESPONDENT: ----------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, PAZHAYANNUR RANGE. PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 612 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008. Order Petitioner was tried for the offence punishable under Section 58 of the Abkari Act. The trial court found him guilty and he was convicted and sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.10,000/-, and in default to suffer simple imprisonment for 3 more months. In appeal, the Sessions Court confirmed the order of conviction. However the sentence was modified and petitioner was directed to suffer simple imprisonment for 2 months and to pay a fine of Rs.15,000/- with a default sentence. The above order of conviction and sentence is under challenge in this revision petition. 2. The prosecution case in a nut shell was that on September 2, 1996 at about 4.30 p.m. while Pw.2, Preventive Officer, was on patrol duty along with some other officials of the excise party, petitioner was apprehended with 2 litres of illicit arrack in his possession. Pw.2 stated before the court that petitioner was found carrying a 'jerky' with a capacity of 5 litres containing 2 litres of contraband liquor. Pw. 2 confirmed that the liquor was illicit arrack by taste and smell. He took 150 ml. of the liquor as sample from the contraband liquor and completed the other formalities of seizure. Pw.2 further stated that petitioner was arrested and taken to the office on the same day itself. Chemical examination revealed that the sample contained ethyl alcohol. Accordingly charge sheet was laid by Pw.1 after completing investigation. 3. Pws.3 and 4 who were stated to be the independent witnesses, did not support the prosecution. Pw.3 stated that he was not present at the scene of occurrence as alleged by Pw.2 He had signed in a paper at the Excise Crl.RP.612/2000 2 office as directed by the officials. Pw.4 also stated that he had not witnessed the seizure/recovery and sampling as alleged by Pw.2. 4. The prosecution had not examined the other officials who had accompanied Pw.2 at the time of the alleged detection of the crime. In short, the only evidence available was that of Pw.2. Pw.1 had stated that accused was produced before him on September 3, 1996 at about 10 a.m.whereas the specific case of Pw.2 was that he had produced the accused before Pw.1 on September 2, 1996. Though this contradiction may not be of great importance, it has to be noticed that the prosecution had not adduced any evidence to show that the sample bottle and other contraband were produced before the court without any delay. In fact a perusal of Ext.P2 certificate of chemical analysis will show that the sample bottle was received in the Laboratory only on December 10, 1996, more than 3 months after the alleged detection and recovery. No evidence was adduced by the prosecution to show that the sample bottles were kept in proper custody either in the excise office or in the court. There was also no explanation as to why the other officials who accompanied Pw.2 were not examined. In view of the above circumstances I am satisfied that petitioner is entitled to get the benefit of doubt. Therefore the order of conviction and sentence passed against the petitioner is set aside and he is acquitted. 5. Crl.R.P. is allowed. Fine amount, if any, deposited by the petitioner shall be refunded to him. A.K. Basheer Judge. an. Crl.RP.612/2000 3