IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.Rev.Pet.No. 2974 of 2003() ------------------------------ CRA.34/1999 OF THE COURT OF THE ADDL. DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK COURT -I, MANJERI. CC.826/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED :- --------------------- RAJAN, AGED 30 YEARS, S/O.CHANGU, KODUVAYOOR AMSOM, PUKAYOOR DESOM, THIRURANGADI TALUK, MALAPPURAM DISTIRCT. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- STATE – REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (C.C.NO.826/96 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI). BY P.P. SRI. B. JAYA SURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1-7-2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 2974 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 1st day of July, 2010 O R D E R Petitioner, who has been concurrently found guilty under section 55(a) of the Abkari Act, by the trial court as well as the appellate court, has filed this revision petition, challenging the order of conviction and sentence passed against him. 2. The trial court found the petitioner not guilty under section 55(i) of the Abkari Act; but found him guilty under section 55(a) of the Abkari Act and accordingly convicted and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.25,000/- and in default of payment of fine to suffer simple imprisonment for three months. The said order of conviction and sentence was confirmed in appeal by the Sessions Court. Crl.R.P. 2974/2003 2 3. The prosecution case, in brief, is that on June 23, 1996 at about 7.30 p.m. PW1, the then Excise Circle Inspector, and PW3, Excise Guard, conducted a search in the premises of an Ice Cream Parlor run by the petitioner. In the course of the search, petitioner was found engaged in sale of illicit arrack to accused No.2. According to the prosecution, petitioner was in fact found pouring a coloured liquid from a bottle in his hand to the tumbler in the hands of accused No.2. On examination, it was found to be illicit arrack. About 300 ml. of the coloured liquid was found in the bottle and about 75 ml. in the tumbler. On search of the body of the petitioner, two bottles, having a capacity of 375 ml. each with the same coloured liquid, were also found. On further search it was found that the petitioner had kept a 5-litre plastic can, containing two litres of similar coloured liquid in his premises. The petitioner was arrested from the spot and contraband articles were recovered. 180 ml. of the coloured liquid was taken as sample from the can. In addition to the above, 8 Crl.R.P. 2974/2003 3 empty bottles, having a capacity of 180 ml., 3 other empty bottles, having a capacity of 375 ml. and 60 bottle caps were also recovered. 4. PWs.1 to 6 were examined and Exts.P1 to P6 and MOs.1 to 7 were marked on the side of the prosecution. Petitioner got himself examined as DW1 and marked Exts.D1 and D2 on the side of the defence. 5. As mentioned earlier, the petitioner was found guilty under section 55(a) but acquitted under section 55(i) of the Act. The trial court though noticed certain discrepancies in the prosecution case, held that nothing substantial had been brought out to discredit or disbelieve the evidence of PWs.1 to 3, who were well experienced Excise officials. The Sessions Court, in appeal, confirmed the conviction and sentence, accepting the line of reasoning adopted by the trial court. 6. As mentioned earlier, the definite case of the prosecution was that the revision petitioner was found holding a bottle, having a capacity of 375 ml. in his hand Crl.R.P. 2974/2003 4 and pouring a coloured liquid from the said bottle to the tumbler in the hands of accused No.2. PWs.1 and 3 had further allegedly recovered two bottles, having a capacity of 375ml. from the body of the petitioner. Admittedly, sample was taken only from the liquid contained in the can and not from any of the bottles, which were allegedly recovered simultaneously. PW1 did not say in his evidence as to how many samples were taken by him from the premises. But, it is seen from Ext.P6 occurrence report that he had taken 180 ml. of the coloured liquid as sample in a bottle, having the same capacity. 7. I have referred to the above aspect only to highlight the manifest discrepancies in the evidence adduced by the prosecution. While the mahazar refers to the bottle, in the hands of the petitioner as having a capacity of 375 ml. the evidence of PWs.1 and 3 is to the effect that it contained only 700 ml. More interestingly, PW1 in his evidence stated that only one bottle containing the coloured liquid of 375 ml. was recovered from the body Crl.R.P. 2974/2003 5 of the petitioner. But, according to PW3, two such bottles were recovered from the body of the petitioner. 8. As has been noticed already the sample was taken only from the plastic can and not from any of the three bottles. The explanation offered by PW1 is that the discrepancy had occurred solely due to oversight. In this context, it may also be noticed that PWs.2 and 4 who were cited and examined as independent witnesses, did not support the prosecution case. The specific case of the petitioner was that he had purchased Indian Made Foreign liquor from the neighbouring shop under Ext.B1 bill for his personal consumption. He denied the entire charge alleged against him and asserted that a false case was foisted against him. The trial court condoned or ignored the discrepancies and held that such discrepancies may occur in the evidence of witnesses. I am afraid, the above view taken by the learned Magistrate cannot be sustained. 9. A perusal of Ext.P1 search memo, Ext.P2 search list and Ext.P3 mahazar will undoubtedly show that the alleged Crl.R.P. 2974/2003 6 search and recovery, even assuming that they were true, had been carried out in a haphazard and illegal manner. Discrepancies noticed above are sufficient enough to disbelieve the prosecution case. 10. In any view of the matter, petitioner is entitled to get the benefit of doubt. Therefore,the order of conviction and sentence passed against the petitioner is set aside. He is found not guilty under section 55(a) of the Abkari Act and acquitted. Bail bond executed by the petitioner shall stand cancelled. Revision petition is allowed. A.K.BASHEER, JUDGE. mn.