IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 13TH DAY OF JUNE 2011/23RD JYAISHTA 1933 CRL.A.No. 1609 of 2003 ( ) -------------------------- AGAINST THE ORDER/JUDGMENT IN SC.453/2001 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 27-08-2003 APPELLANT/ACCUSED: ----------------------- KUTTAN S/O.PODIYAN, AGED 45 YEARS, PLAVILA VADAKKETHIL VEEDU, MUDIYOORKONAM KARA, PANDALAM VILLAGE, ADOOR. BY ADV. SRI.SEBASTIAN PHILIP RESPONDENT(S): ------------------ STATE OF KERALA CHARGE SHEETED BY THE EXCISE INSPECTOR, ADOOR RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No.1609 of 2003 -------------------------- Dated this the 13th June, 2011 J U D G M E N T A charge was framed against the appellant by the Additional Sessions Court under Section 8 (1) read with 55 (a) of the Kerala Abkari Act. 2. According to prosecution, appellant was found in possession of three litres of arrack which was being transported by him in a can having a capacity of 5 litres on a public road. After trial the appellant was found guilty of possession of three litres of arrack and he was convicted. He was also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of realisation of fine to undergo imprisonment of the same description for a further period of six months. The above conviction and sentence are under challenge in this appeal. 3. According to prosecution, PW1 who is the Preventive Officer was on patrol duty along with PW2 was also a Preventive Officer and others on 24.11.1997 at Crl.A No.1609 of 2003 2 about 11 a.m. On that day they found the accused coming from the opposite side carrying a black can and getting perplexed on seeing the excise party. He was apprehended and the can was examined and it was found to contain arrack. The contraband article was seized under mahazar Ext.P1. It was sealed and labelled. Accused was arrested from the spot. A case was registered and after investigation a charge was laid against the appellant. 4. Heard both sides. Perused the records. The trial court found from the evidence of the official witnesses, PWs 1 and 2 that MO1 was seized from the possession of the accused and content therein was arrack. PW1 and 2 were the preventive officers who were on patrol duty on the date of occurrence viz., 24.11.1997 at about 10 a.m. Both of them stated that accused was found carrying a can and that on examination of the contents of the can, it was found to contain three litres of arrack which on smell and taste was found to be arrack. 5. Prosecution adduced evidence to show that MO1 was the article seized from the possession of the accused on Crl.A No.1609 of 2003 3 the crucial day and sample was taken from the contents of MO1 from the court and it was sent for chemical analysis. Ext.P6 is the chemical analysis report which was actually obtained and as per the report ethyl alcohol was detected in the sample and it contain 33.36% by volume of ethyl alcohol. 6. PW1 stated that the can seized from the possession of accused is MO1 and that to identify the same a label was affixed on the can. He identified the label which was affixed on MO1 and stated that it was the label affixed by him on the can. He stated in chief examination itself that nobody's sign was obtained on the label. However, he also admitted that on MO1, the signature of accused was present. In cross-examination he also stated that the signature of the witnesses were absent in MO1 and only the signature of accused was present in MO1. 7. PW2 the preventive officer stated that the can was sealed from the spot and label was also affixed on the can and two witnesses were made to sign on the label. It appears from the evidence of PW1, he had affixed label on Crl.A No.1609 of 2003 4 MO1, but it is clear from the evidence of PW1 that the signature of the witnesses are not present on the label affixed on MO1. According to PW1 only the signature of the accused was present on MO1 and it was on the basis of the label that PW1 identified MO1 as the can which was seized from the place of occurrence. 8. PW5, the Excise Inspector deposed that the articles seized in this case were produced before him and he identified MO1 as the can produced before him. He stated that a label was affixed on the can and it was the same label which was present on the can at the time of examination. In the light of the above evidence, it appears that there is some discrepancy in the identity of the can seized in this case. 9. From the evidence adduced by the prosecution which is owned by the prosecution it is doubtful whether MO1 is the same can which was seized from the place of occurrence. If the evidence of PW2 who affixed the label is accepted, MO1 contained a label with the signature of witnesses alone and not that of the accused. However, MO1 Crl.A No.1609 of 2003 5 which is identified and marked in this case contains a label on which the signature of witnesses are absent but only the signature of accused is present. Prosecution has not explained the discrepancy. 10. On the other hand, PW5 asserted that MO1 is the same article which was produced before him. In the light of the inconsistent version it is doubtful whether MO1 is the same can which was allegedly seized from the possession of the accused and identified by the witnesses in court. It is not clear what happened to the label which was affixed by PW2 which contained the signature of the witnesses as spoken to by PW2. 11. It is also in evidence that MO1 did not contain any arrack at the time of evidence. Of course it was brought out in evidence that MO1 can was broken at the bottom and hence the article must have been leaked out. At any rate, in the light of the inconsistent version regarding the labelling, prosecution has failed to prove that the article seized from the accused was produced in court. Therefore, the chemical analysis report obtained in this case may not Crl.A No.1609 of 2003 6 be sufficient to prove that the article seized from the possession of accused was liquor. 12. The report of the chemical analyst cannot be acted upon to prove that the article seized from the possession of accused was liquor. The trial court has not looked into to these aspects and analysed the evidence regarding the labelling in the right perspective. There is no satisfactory evidence that the can which was seized from the possession of accused itself was produced in court. Sampling was done from the can which was produced in court. 13. In the absence of any evidence to connect the accused with the can which is produced in court, sampling and chemical analysis will not be of any consequence against accused or in favour of the prosecution. In the above circumstances, the conviction and sentence passed against the appellant are unsustainable and hence the following order is passed. (i) The conviction and sentence passed against the appellant under Section 8 (1) r/w 55 (a) of Kerala Abkari Act are set aside. Crl.A No.1609 of 2003 7 (ii) The appellant is found not guilty of offence under Section 8 (1) and 55 (a) of Abkari Act and he is acquitted of the said offence. (iii) The appellant is set at liberty forthwith. Appeal is allowed. Sd/- K.HEMA, JUDGE ma /True copy/ P.A to Judge