IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 CRL.A.No. 1018 of 2003(C) ------------------------------------ SC.55/2002 of III ADDL. SESSIONS COURT (FAST TRACK I), THRISSUR ................................................. APPELLANT(S): ACCUSED ------------------------------------- DIVAKARAN, S/O. KOTTAYIL VELAYUDHAN, KATTOM VILLAGE, KANDANISSERY NAMBAZHIKAD DESOM, NOW RESIDING AT H.NO.III/56, THOLOOR PANCHAYATH PONNORA DESOM, THOLOOR VILLAGE, THRISSUR TALUK, THRISSUR TALUK. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): RESPONDENT ---------------------------------------------- STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1018 OF 2003 = = = = = = = = = = = = = = = Dated this the 30th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the 3rd Addl. Sessions Judge, Fast Track court-I, Thrissur in S.C.55/02. The accused was charge sheeted for the offences u/Ss.55(a) and (i) and S.8(1) and (2) of the Abkari Act and was found guilty u/s 55(a) and (i) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months. It is against the decision the accused has come up in appeal. 2. The points that arise for determination are, (1)Whether the materials are sufficient to hold the accused guilty u/s 55(a) and (i) of the Abkari Act? (2)In case of guilt, is the sentence excessive? Points 1 and 2: 3. It is the case of the prosecution that on 30.11.97 at 5.30 p.m. the accused was found with two Cans in which one Crl. Appeal NO. 1018 OF 2003 -:2:- Can contained 10 liters of liquor and in another Can of one liter of liquor. He was intercepted, examined and the liquid on taste and smell was found to be illicit arrack. It is the case of the prosecution that 90 ml each was taken as sample from the two containers and it was taken in a bottle sealed and labeled. The remaining liquid was preserved in the container itself and it was also sampled and sealed. Thereafter the accused was arrested and produced before court. The material objects and the sample were produced before court on the very next day and it was sent for chemical analysis and the chemical examiner's report revealed that the liquid contained 5.92% by volume of ethyl alcohol. 4. The learned counsel for the appellant very strongly contends before me the following points. (1)The minimum sample that should have been taken from each container should have been 180 ml. (2)The sample taken as per the case of the prosecution is 180 ml whereas the sample that is examined by the examiner is only 145 ml. Crl. Appeal NO. 1018 OF 2003 -:3:- (3)The percentage of alcohol contained is 5.92% which would indicate that it was not illicit arrack and lastly (4) that the place of occurrence and the preparation of the scene mahazar are conflicting in the light of the evidence adduced by the witnesses. 5. The person who detected the crime could not be examined before Court on account of the fact that he was laid up and was unable to attend the Court. So the prosecution examined the Preventive Officer of the Excise Enforcement Department as PW1 who had accompanied the detecting officer. He had deposed before Court that samples were taken at the rate of 90 ml. from each of the Cans and it was sealed. It was also submitted that a glass of 20 ml capacity was found and from the T-shirt worn by the accused Rs.1,010/- was taken as cash. He had been examined and it is stated that the accused attempted to escape and the Circle Inspector caught hold of him. It is further stated by him that the seizure mahazar was prepared by utilizing the bonnet of the jeep. It is also stated when a question was put that the seizure Crl. Appeal NO. 1018 OF 2003 -:4:- mahazar was prepared from the culvert. PW2 is an independent witness who had not supported the case of the prosecution. He had been declared as hostile and in cross examination he had admitted his signature in Ext.P1. PW3 also has turned hostile to the prosecution. PW4 was also a person who was working at that point of time and the person who had detected the liquor had produced it before him. PW5 is the Village Officer who had prepared the plan. PW7 is another officer who was there along with PW1 and he had also spoken in line with the evidence of PW1. I may like to state that there are suspicious circumstances in this case for the following reasons. 6. There was a statutory mandate to take 180 ml of sample and according to the prosecution 180 ml of sample was taken. Ext.P8 is the chemical analysis report which reveals that what was tendered before the chemical examiner was a sealed bottle containing 145 ml colourless liquid and the percentage of ethyl alcohol contained in the liquid was 5.92%. It is a categoric, specific case in the scene mahazar as well as Crl. Appeal NO. 1018 OF 2003 -:5:- in he evidence of PWs.1 and 7 that the liquid was tested by smell and taste and they were convinced that it is illicit arrack. By any stretch of imagination one cannot accept the proposition that the percentage of ethyl alcohol in illicit arrack would be only 5.92%. Even in toddy it is more than 8.33%. So if it was illicit arrack that was seized and sent for chemical analysis certainly the percentage would have been more. So the two factors are that the bottle that was sent to the chemical expert was the bottle which contained only 145 ml colourless liquid with sediments and that only 5.92% by volume of ethyl alcohol alone was present in it. So percentage would indicate a factor that it was not illicit arrack that was sent for chemical analysis. There is no case for the prosecution that it was some other liquid that was seized and sent for chemical analysis. So there is total suspicious circumstances. Neither PW1 nor PW7 had spoken anything about these aspects at all. When it is so I am not convinced that the sample which was alleged to be taken had reached the Court and it was that liquid which had been sent for Crl. Appeal NO. 1018 OF 2003 -:6:- chemical analysis. Coupled with this, we find a very embarrassing situation when we find that both the containers wherein the liquid was alleged to be carried and which contained 9.910 litre + .910 ml. of liquid was totally not available in the containers at the time of examination before Court. So all is not well with the prosecution. Being an offence which mandates a punishment up to 10 years it is the duty of the prosecution to prove beyond reasonable doubt the factors mentioned. So on the following grounds I am inclined to acquit the accused. (1) The quantum taken as sample was insufficient. (2) The quantum alleged to have been taken has not reached the chemical examiner. (3) If it was illicit arrack certainly the percentage would have been much more than 5.92% So the inevitable consequence is to give the benefit of doubt to the accused and acquit him. In the result the Crl.Appeal is allowed and the conviction and sentence passed u/s 55(a) and (i) of the Abkari Act are Crl. Appeal NO. 1018 OF 2003 -:7:- set aside. The accused is found not guilty of the offences under the said Sections. He is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1018 OF 2003 -:8:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1018 OF 2003 = = = = = = = = = = = J U D G M E N T 30th July, 2009