IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 198 of 2002 -------------------------------------------- CRA.12/1998 of ADDL. SESSIONS COURT, ALAPPUZHA CC.289/1996 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARY .................... REVN. PETITIONER/APPELLANT/1ST ACCUSED: RAMANKUTTY, S/O.KUTTY, BIJU BHAVANAM, MAMPUZHAKKARY MURI, RAMANKARY VILLAGE, KUTTANAD. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENT/STATE/COMPLAINANT: THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2544/2002 IN CRRP 198/2002 DISMISSED 21.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.198 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.289/1996 on the file of Judicial First Class Magistrate's Court, Ramankary, was convicted and sentenced for the offence under Section 55(a) of Abkari Act. Petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.No. 12/1998. Learned Additional Sessions Judge, on re- appreciation of the evidence, confirmed the conviction, but modified the sentence to rigorous imprisonment for six months and a fine of Rs.5,000/- and in default, simple imprisonment for one month. This revision is filed challenging the conviction and sentence. 2. Prosecution case is that on 22.5.1996 at about 7.15 p.m., PW3, the Excise Inspector, Kuttanad Excise Range, while on patrol duty with the Excise party, reached the pathway on the CRRP 198/02 2 eastern side of Mangalassery Chira in Mampuzhakary, petitioner was coming across with MO1 plastic can on his shoulders and finding the behaviour of the petitioner seeing the excise party and getting suspected, PW3 examined the contents of MO1 plastic can and found that the can was having a capacity of 22 litres and contained 15 litres of liquid. PW3, on smelling and tasting the same, found that it is spirit. It was seized and petitioner was arrested and Exhibit P1 mahazar was prepared. Sample was later sent to chemical laboratory and obtained Exhibit P4 report, which shows that the sample contained 49.51% of ethyl alcohol. Prosecution would contend that petitioner, thereby, committed the offence under Section 55(a) of Abkari Act. 2. Petitioner pleaded not guilty of the offence. PWs 1 and 2, the independent witnesses, who are the witnesses to Exhibit P1 mahazar, when examined, turned hostile. PW3 was examined to prove the seizure. On the side of the petitioner, DW1 was CRRP 198/02 3 examined and Exhibits D1 to D3 were marked, to prove his illness. 3. Learned Magistrate, on the evidence, found that petitioner was in possession of MO1 can, which contained 15 litres of spirit, as proved by the evidence of PW3 and Exhibit P4 report of chemical analysis. Learned Additional Sessions Judge, on re- appreciation of the evidence, though found that there is no evidence to establish as to who had taken the sample, which was examined at the laboratory and found that evidence of PW3 establishes that by smell and taste he could satisfy that it was spirit. On that finding, the conviction was confirmed. 4. Argument of the learned counsel is that appreciation of evidence was not proper and when independent witnesses turned hostile and evidence of PW3 is not trustworthy, courts below should not have convicted the petitioner. It was pointed out that improbability of a person like the petitioner, CRRP 198/02 4 who is suffering from illness, evidenced by Exhibits D1 to D3 medical records, carrying 15 litres of spirit on the shoulders was not properly appreciated and the explanation offered by the petitioner that PW3 has enmity with his son, who is running a toddy shop, was also not properly considered and in such circumstances, based on the evidence of PW3 alone, petitioner should not have been convicted. Learned counsel then argued that, in any case, when there is no evidence to prove that Exhibit P4 report of chemical analysis, is after examining the contraband article seized from the petitioner, in the absence of any legal evidence to prove that petitioner was in possession of the spirit, conviction is bad and petitioner is to be acquitted. 5. Learned Public Prosecutor was also heard. 6. Though PWs 1 and 2, the independent witnesses, turned hostile, learned Magistrate and learned Additional Sessions Judge accepted the CRRP 198/02 5 evidence of PW3. There is no law or rule that evidence of an Excise Inspector or a Police Officer is either to be disbelieved or to be viewed with suspicion. Their evidence is to be appreciated just like any other evidence. Learned counsel submitted that learned Magistrate and learned Additional Sessions Judge has not appreciated the evidence in the proper perspective. I do not find any reason to interfere with the appreciation of evidence, as it cannot be said that appreciation of evidence by the trial court and the appellate court was perverse. 7. The question is whether there is evidence to prove that petitioner was in possession of spirit as found by the courts below. Learned Magistrate relied on Exhibit P4 report of chemical analysis to find that the contents of MO1 can, which was being carried by the petitioner, was spirit, as it shows that it contains 49.51% ethyl alcohol. Learned Additional Sessions Judge though relied on Exhibit P4 report, on the ground that there is no CRRP 198/02 6 evidence to show that who had taken the sample, relied on the evidence of PW3 that he had tasted and found that the contents of Mo1 can is spirit. The question is whether petitioner could be convicted based on the smell or taste experienced by PW3. 8. Exhibit P1 mahazar does not show that any sample was taken out of the contents of MO1 can from the scene of occurrence or at the time of seizure. PW3, the Excise Inspector, has also no case that any sample was prepared from the seized contraband article. Though it is not marked, the records shows that a requisition was submitted before the court, along with the property list, where under MO1 can was produced before the court, to send the contraband article to the laboratory. It is seen that learned Magistrate has returned the contraband article to the Excise Inspector with an order that there is no space to keep the same in court. It is, thereafter, the contraband article CRRP 198/02 7 was sent to the laboratory. Exhibit P4 report shows that the sample received was in a sealed bottle containing 180 ml. clear and colourless liquid, alleged to be spirit. There is no evidence or material to show that the sample so examined at the laboratory was the sample prepared from the contraband article seized from the petitioner. As stated earlier, PW3 has no case that he has prepared any sample. Exhibit P3 occurrence report shows that no sample was taken. On the other hand, though a requisition was submitted to send the contraband article to the laboratory, the order in the application, where under MO1 can produced by the Excise Inspector, shows that it was not retained by the court and instead, it was returned to the Excise Inspector. Therefore, it cannot be presumed that the sample bottle was prepared by the court and sent to the laboratory. If that be so, there should be evidence as to who prepared the sample and how it was sent and by whom. There is CRRP 198/02 8 absolutely no evidence to prove the same. In such circumstances, learned Additional Sessions Judge was justified in not relying on Exhibit P4 report, as it does not show that it was the report submitted to the court after examining the sample prepared from the contraband article seized from the petitioner. 9. It was based on the oral evidence of the Excise Inspector that by smell and taste it was understood that the contents of MO1 can is spirit, petitioner was convicted solely based on the oral evidence of PW3 that by smell and taste he was satisfied that it is spirit. Such a conviction cannot be upheld. Conviction cannot be based on the evidence of the Excise Inspector that he tasted the contraband article and found to be spirit based on taste or smell. If that be so, conviction of the petitioner can only be quashed. Revision is allowed. Conviction of the petitioner for the offence under Section 55(a) of CRRP 198/02 9 Abkari Act in C.C.No.289/1986 by Judicial First Class Magistrate, Ramankary, as confirmed and modified by learned Additional Sessions Judge, Alappuzha in Crl.A.No.12/1998 is set aside. Petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by the petitioner stands cancelled. 21st May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 198/02 10 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.198 of 2002 -------------------------- ORDER 21st May, 2010