IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 CRL.A.No. 1063 of 2002 SC.241/1999 of ADDL.DIST. AND SESSIONS COURT (FAST TRACK ADHOC II), KOZHIKODE .................... APPELLANT/ACCUSED RAVEENDRAN, S/O.KRISHNAN CHETTIAR, AGED 48, PUTHIYOTTIL MOORADAN KANDY VADAKARA AMSOM DESOM, KOZHIKKODE DT. BY ADV. SRI.K.K.JAYARAJ NAMBIAR RESPONDENT/COMPLAINANT STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR VADAKARA RANGE. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON 12/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1063 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of February 2008 JUDGMENT Appellant stands convicted and sentenced for the offence punishable under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. The court below found that the prosecution had succeeded in proving the charge that the appellant/accused had kept 1.8 litres of Indian Made Foreign Liquor (six bottles of 180 ml. capacity each) in his possession in violation of the provisions contained in the Act and the Rules referred to above. Accordingly, he was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for six months. The above order of conviction and sentence is challenged in this appeal. 2. The prosecution case in a nut shell was that on July 19, 1997 at about 7.15 a.m. the accused was found carrying six bottles (180 ml. each) of Doctors No.1 Brandy while he was travelling in a stage carriage bus bearing Reg.No.KRC-2255 plying on Thalassery-Vadakara route. The bus was stopped by Crl.A.No.1063 OF 2002 :: 2 :: PW1 near the Sales Tax Check Post at Azhiyoor. On a search made by PW2 inside the bus, it was found that the accused was carrying the above contraband. According to PW1, he seized the contraband under Ext.P3 list. Ext.P1 mahazar was also prepared. No sample was taken since all the bottles were identical and they contained the same brand of liquor. The contraband articles were produced before the court and a request was made to forward one bottle containing 180ml. for chemical analysis. 3. The accused was charge sheeted after completing the investigation. The accused was committed to the Sessions Court thereafter. The prosecution examined PWs 1 to 6 and Exts.P1 to P6 and M.O. 1 were marked on its side. The learned Sessions Judge found that the prosecution had satisfactorily established the charge levelled against the appellant and accordingly he was convicted and sentenced as mentioned earlier. 4. It is pertinent to note that PW1, the Preventive Officer had admitted before the court that there was no seal on M.O.1 Crl.A.No.1063 OF 2002 :: 3 :: bottles (5 in number) available in court and which were allegedly recovered from the accused. He had neither affixed any seal on the bottles nor had he obtained the signature of the accused or witnesses on the bottles. He further admitted that he had not sent sample for analysis. Curiously, he further conceded that he did not know whether the sample bottle which was recovered from the accused had been sent for analysis. PW1 asserted that he had seized Doctors No.1 brandy from the accused. But he had not tasted or smelt the same at the time of seizure. He further stated that he had gone for duty alone on that day and he had not intercepted any other vehicle. 5. PW2 and PW5, the driver and conductor respectively of the bus did not support the prosecution case. They were declared hostile. PW3 who was the Excise Circle Inspector working in the Excise Range concerned, stated before the court that he had not produced the contraband before the court. He stated that he had given requisition to send the sample containing Doctors No.1 brandy for analysis. But curiously Ext.P6 report of the analyst shows that what had been analysed Crl.A.No.1063 OF 2002 :: 4 :: by the chemical analyst was National Doctors Reserve No.1 brandy and not Doctors No.1 brandy. It is also revealed from Ext.P6 certificate that the sample was received at the laboratory only on January 21, 1998, after a lapse of about 6 months from the date of the alleged seizure of the contraband. No evidence was adduced by the prosecution to show that the sample was kept in proper custody. The delay has also not been explained. Having perused the entire materials available on record, I have no hesitation to hold that the court below was not justified in holding the accused guilty under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. Therefore, the order of conviction and sentence is set aside. Accused is acquitted. The bail bond executed by him is cancelled. The appeal is allowed. (A.K.BASHEER, JUDGE) jes Crl.A.No.1063 OF 2002 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1063 OF 2002 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 12th Feb 2008