IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Crl.Rev.Pet.No. 564 of 2000(C) CRA.205/1997 of ADDL. SESSIONS COURT, ALAPPUZHA CC.160/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER/APPELLANT/ACCUSED: SURENDRAN, S/O DAMODARAN KOCHUVELIYIL, WARD NO.6, MUHAMMA PANCHAYAT, THANNEERMUKKOM THEKKU VILLAGE,CHRTHALA TALUK. BY ADV. SRI.J.OM PRAKASH RESPONDENTS/RESPONDENT/PROSECUTION: THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.564 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January 2008 ORDER Petitioner was tried for an offence punishable under Section 55(a) of the Abkari Act. He was found guilty by the trial court and accordingly convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- and in default to suffer simple imprisonment for six months. In appeal, the Sessions Court confirmed the order of conviction and sentence. Petitioner has preferred this revision petition challenging the above concurrent order of conviction and sentence. 2. The prosecution case in brief was that on August 26, 1994 at about 4.30 p.m. while the Excise Party led by PW5, Excise Inspector was doing patrol duty it was found that the accused was running an unlawful and unauthorized toddy shop in a shed erected in the residential compound of Kochuveliyil Damodaran in Ward No.6 of Muhamma Panchayat. The Excise party conducted a search in the presence of PWs 1 and 2 and Crl.R.P.No.564 OF 2000 :: 2 :: seized 42 litres of toddy contained in three vessels of different capacities. The vessels, glasses, aluminium pot, measuring steel cup, plastic basin, etc. were seized. 375 ml of toddy was taken as sample and sent for analysis. The report of the analyst showed that the white turbid liquid was Ethyl alcohol, though no noxious ingredients injurious to health were detected. 3. The Excise Circle Inspector had registered the case against the petitioner after completing investigation. In the meanwhile the contraband, utensils and other implements were produced before the court. The prosecution had examined PWs 1 to 5 and Exts.P1 to P5 and M.O.1 to 13 were marked on its side. Ext.D1 was produced on the side of the defence. The learned Magistrate found that the prosecution had succeeded in proving the charge against the accused and accordingly he was found guilty under Section 55(a) of the Act and convicted and sentenced as mentioned earlier. The order of conviction and sentence was confirmed by the Sessions Court in appeal. Hence this revision petition. 4. It is contended by learned counsel for the petitioner Crl.R.P.No.564 OF 2000 :: 3 :: that the order of conviction is per se illegal and vitiated. It is pointed out by the learned counsel that the prosecution had totally failed to explain the delay in forwarding the sample for analysis. More importantly, there was no evidence to show that the sample was kept in proper custody before it was forwarded to the chemical analyst. Learned counsel has also contended that the entire prosecution story was cooked up. 5. As mentioned earlier, PW5 and his patrol party had allegedly conducted the search of the toddy shop premises on August 26, 1994. According to the prosecution, the accused was found running an unauthorized toddy shop in a temporary shed constructed in the property of one Kochyveliyil Damodaran in Ward No.6 of Muhamma Panchayat. Curiously, the prosecution had not made any attempt to examine the said property owner and no document was produced to prove ownership. Still further, the case of PW2, the Excise Preventive officer, was that the patrol party had found PW1 and 3 on the road and that they were taken along with the party from the road. PW1 had admitted that he had put his signature in Crl.R.P.No.564 OF 2000 :: 4 :: Ext.P1. But both PW1 and PW3 had turned hostile to the prosecution. PW5, the Excise Inspector had passed away after his examination in chief and therefore accused did not get an opportunity to cross examine the said witness. It is true that the trial court had not relied on the evidence of PW5. But still the learned Magistrate found that the evidence of PW2 and 4 coupled with that of Ext.PW1 was sufficient to hold the petitioner guilty of the offences alleged against him. 6. It is pertinent to note that the prosecution case was that 375 ml of toddy was taken as sample from the premises and produced before the court. Ext.P5 certificate of the analyst showed that the sample was received at the laboratory only on May 5, 1995. There is absolutely no evidence on record to show that the sample had been kept in proper custody till it was forwarded to the laboratory. More importantly, there was no explanation as to how and why the delay in forwarding the sample to the analyst had occurred. 7. In my view, the above crucial flaw in the prosecution case is sufficient to hold the petitioner not guilty of the offence. Crl.R.P.No.564 OF 2000 :: 5 :: Therefore, the order of conviction and sentence passed against the petitioner is set aside and he is acquitted. If the petitioner has remitted the fine amount as directed by the court, it shall be refunded to him. The bail bonds executed by him and the sureties shall stand discharged. Revision petition is allowed. (A.K.BASHEER, JUDGE) jes