IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.A.No. 1150 of 2003() ----------------------------------- SC.60/2002 of ADDL. SESSION COURT (ADHOC-II), ERNAKULAM. .................... APPELLANT/ACCUSED ------------------------------- ANILKUMAR. R., S/O. LATE RAJU, LAKSHMI MANDIRAM, HOUSE NO. VI/1956, MATTANCHERY VILLAGE, KOCHI TALUK. BY ADV. MR.P.VIJAYA BHANU MR.TONY MATHEW RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1150 OF 2003 = = = = = = = = = = = = = = = Dated this the 7th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-II, Ernakulam in S.C.60/02. Accused was charge sheeted for offence u/s 55 (a) (i) of the Abkari Act and was convicted thereunder and sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to convict the accused u/s 55(a) of the Abkari Act? (2) Is there anything to interfere with the decision rendered by the Court below? Crl. Appeal NO. 1150 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant had pointed out and brought before me the fundamental mistake that has crept in, which if accepted should go to the benefit of the accused. It is the case of the prosecution that the accused was found in possession of 26 bottles of John's Old Marshell Brandy and 28 bottles of whisky and he was apprehended, examined and the articles namely the liquor were seized from the house of the accused. Now the learned counsel for the appellant would contend before me that the chemical examiner's report, Ext.P7 would reveal that what is examined by the chemical examiner is a liquid of 250 ml which is a clear and coloured liquid. A reading of the seizure mahazar would reveal that the sample taken is from the bottles which were there in the house itself. There is no whisper of transferring the liquid from its original container to another bottle for the purpose of sampling and then sealing. In the paragraphs in the seizure mahazar it is also seen that two bottles were opened, tasted and they were sealed after tying it with a cloth Crl. Appeal NO. 1150 OF 2003 -:3:- and twine and then sealed. So prima facie it appears that the sample is also the original liquid which is to be taken. Now this gets support from the occurrence report. In the occurrence report it is stated that 27+25 full bottles were taken and one bottle of brandy and one bottle of whisky were taken as sample of two bottles. So it will be (25+27+2=54). So prima facie from the seizure mahazar and the occurrence report no sample is separately taken at all. 4. Now we refer to the forwarding note. The forwarding note would reveal that what is seen as sample are (1) Sample of 250 ml original Choice Fine whisky in 375 ml bottle labeled and sealed. (2) Sample of 250 ml John's Old Marshell Brandy in 375 ml bottle labeled and sealed. It is again reiterated that both these samples are contained in 375 ml bottles. So what is sent for chemical analysis is the liquid which is taken in a bottle having the capacity of 375 ml. There is no case for the prosecution anywhere that from the place where it is alleged to be seized liquor had been transferred to a 375 ml bottle so as to take it as a sample. But on the contra what will appear is that from the total Crl. Appeal NO. 1150 OF 2003 -:4:- number of 54 bottles of whisky, one bottle of brandy were opened and a small quantity was taken for the purpose of tasting and the balance was tied with a cloth, then sealed. So it is the original of the bottle seized that is taken as sample as per the materials. But what is sent for chemical analysis is a bottle of 375 ml capacity. To crown all these things when we go to the chemical analyst's report the liquid that has sent for chemical analysis is only 250 ml. Suppose a negligible quantity from a 750 ml bottle is taken for the purpose of testing it by taste and smell then necessarily 750 ml bottle should be left with at least 700 or 650 ml of liquid in those bottles. But the chemical analysis report reveals that only 250 ml liquid was received for the purpose of examination. So it has to be stated that all is not well with the case and the prosecution has not succeeded in proving the factum that (1) the liquid which was found in possession of the accused was taken as sample (2) that it was that sample that was sent before Court and ultimately it is also not proved that the said sample seized was sent for chemical analysis. When these things which have to be a chain, falls, necessarily the Court Crl. Appeal NO. 1150 OF 2003 -:5:- has to hold that there is no evidence to prove that the accused was in possession of illicit liquor or liquor without permit as contemplated by law. A Court of law cannot and is not expected to find out what is the liquid from the very mere sight. The Court has to rely upon scientific materials for the said purpose. As stated by me there is a total confusion and necessarily the benefit has to go to the accused. So the accused is entitled to an acquittal on the basis of the benefit of doubt. Therefore the appeal is allowed and the conviction and sentence passed by the learned Sessions Judge u/s 55(a) of the Abkari Act is set aside and the accused is found not guilty and acquitted and set at liberty. Since the matter has ended in acquittal if any amount is in Court deposit by way of the direction of this Court for the purpose of suspending the sentence necessarily it has to be reimbursed to the accused on proper application. M.N. KRISHNAN, JUDGE. ul/-