IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 CRL.A.No. 1942 of 2003 SC.479/2001 OF THE ADDITIONAL DIST. & SESSIONS (ADHOC) FAST TRACK COURT II, PATHANAMTHITTA .................... APPELLANT/ACCUSED THOMAS, AGED 44 YEARS,S/O.SAMUEL, VELLAVIL VEEDU,THENGAMOMKARA, PALLICKAL VILLAGE, ADOOR TALUK. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON 21/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1942 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February 2008 JUDGMENT Appellant was tried before the Additional District & Sessions (Adhoc) Fast Track Court-II, Pathanamthitta for offences punishable under Sections 8(1)(2) read with Section 55(a) of the Abkari Act. He was found guilty and accordingly convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for six months. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case in brief was that on January 16, 1999 at about 11.30 a.m. Preventive Officer attached to Adoor Excise Range and his party, in the course of their patrol duty, found the appellant/accused carrying a plastic kit containing 15 white plastic covers having a capacity of 200 ml each. On further examination, it was found that each cover contained 150 ml of a colourless liquid. One such cover was broken, and on taste and smell it was found that the liquid was arrack. Crl.A.No.1942 OF 2003 :: 2 :: The contents of the broken cover was taken as sample in a bottle having a capacity of 180ml. The sample bottle was sealed and labelled and the remaining 14 covers and sample bottle were put in a black kit which was again sealed and labelled. The accused was arrested and case was registered thereafter by the Excise Inspector. The plastic kit containing the contraband and sample were produced before the court along with seizure mahazar, property list, etc. Later the appellant/accused was charge sheeted after completing the investigation. 3. Before the trial court, the prosecution examined Pws1 to 6 and Exts.P1 to P6 and M.O.1 were marked. The learned Sessions Judge, after an elaborate consideration of the oral and documentary evidence on record, held that the prosecution had succeeded in proving the charge levelled against the appellant and he was accordingly convicted and sentenced as stated earlier. 4. PW2 was working as the Preventive Officer in the Excise Range in question at the relevant point of time. He Crl.A.No.1942 OF 2003 :: 3 :: stated that while on patrol duty along with his party, he found the accused carrying a black plastic kit in his hand. On examination, it was found that the kit contained 15 white plastic covers with some liquid. Each cover contained 150ml of the colourless liquid. On tasting and smelling, the liquid was found to be arrack. The contents of the broken cover was taken as sample in a bottle having a capacity of 180 ml. The sample bottle was sealed and labelled. The accused was arrested after preparing the arrest memo, which was marked as Ext.P2. The remaining 14 covers and the sample bottle were put in the black plastic kit and sealed and labelled. Ext.P1, seizure mahazar was prepared in the presence of witnesses. Thereafter, the accused was taken to the Range Office and produced before the Excise Inspector. 5. In cross examination, PW2 admitted that M.O.1 plastic kit which was produced in the case was not the black plastic kit which had been seized from the accused. What was produced and marked as M.O.1 in the case was a white plastic kit. But according to the witness, the black plastic kit must Crl.A.No.1942 OF 2003 :: 4 :: have been inside the white kit produced before the court. Further, he was not in a position to say who had taken out the sample bottle from the sealed black plastic kit. 6. In this context, it may also be noticed that the Prosecution had not produced any evidence with regard to forwarding of the sample from the court to the chemical analyst. No requisition memo was produced. No witness was also examined to speak about forwarding of the sample. It is also pertinent to note that PW2 admitted that he had not bothered to verify whether the other 14 packets also contained arrack or not. According to him, since all the packets looked alike, he assumed that all of them must have contain arrack and it was therefore that he had taken sample from only one packet. PW1, the Excise guard, who accompanied PW2 also admitted that the black plastic kit which was sealed and labelled by PW2 at the time of effecting seizure was not seen in the court. M.O.1 produced by the prosecution was a white plastic kit. He further admitted that the seal which was put on the black plastic kit was not seen Crl.A.No.1942 OF 2003 :: 5 :: now. He also admitted that he did not see the witnesses putting their signature on the label and that the label which was seen on M.O.1 did not contain any signature. But he insisted that the plastic kit which was seized from the accused must be inside the white plastic kit. PW3 and 4 who had allegedly witnessed the seizure had turned hostile. But they admitted their signature in Ext.P1, seizure mahazar. The evidence of other two official witnesses did not advance the prosecution case in any manner. 7. In this context, it may also be noticed that the sample bottle reached the laboratory of the chemical analyst only in December 1999, after about eleven months. Admittedly, the sample bottle along with the four plastic covers was produced before the court on January 16, 1999. The prosecution had not given any explanation for the delay in forwarding the sample to the analyst. As mentioned earlier, no requisition to forward the sample to the analyst was produced. Though learned Public Prosecutor contended that the sample must have been forwarded by the court on its own, I am not Crl.A.No.1942 OF 2003 :: 6 :: persuaded to accept the above contention in the absence of any evidence in this regard. I have carefully perused the oral testimonies of the two material witnesses, namely, PW1 and 2. I have also examined the other materials available on record. The evidence adduced by the prosecution does not inspire any confidence. Therefore, I have no hesitation to hold that the court below was not justified in holding the appellant guilty of the offence alleged against him. He is undoubtedly entitled to get the benefit of doubt. Therefore, the appellant is acquitted. The bail bond executed by him is cancelled. Appeal is allowed. (A.K.BASHEER, JUDGE) jes