IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 837 of 2001() ----------------------------- CRA.324/1998 of I ADDL.SESSIONS COURT, KOZHIKODE CC.173/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER(S)APPELLANT/ACCUSED: --------------------- LATHA, W/O.CHANDRAN, MOONNAMTHOTTIL HOUSE, TALUK KOZHIKODE. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- 1. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THE EXCISE INSPECTOR, THAMARASSERY. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 9/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.837 of 2001 -------------------------------------- Dated this the 9th day of December, 2008. ORDER Heard counsel for revision petitioner and Public Prosecutor. 2. Conviction of the revision petitioner for offence punishable under Section 58 of the Abkari Act and sentence to undergo simple imprisonment for six months and payment of fine of Rs.15,000/- is under challenge. It is contended by the learned counsel that conviction is illegal as there is no evidence to prove the alleged incident. 3. Case is that on 12.8.1995 at about 6.45 a.m. Preventive Officer and party attached to the Excise Office, Thamarassery found the revision petitioner in possession of one and a half litres of illicit arrack in a can. According to the prosecution, Preventive Officer arrested the revision petitioner and released her on bail on spot. Sample was drawn from the contraband and the same and the rest of the contraband in the can were packed, sealed and labelled. Preventive Officer and Excise Guard gave evidence as PWs 4 and 2, respectively. PW1, an attestor in Ext.P1 refused to support the prosecution though he admitted that he signed Ext.P1. PW3 is the Excise Inspector. He claimed to have taken the material objects and records to custody on its production by the Preventive Crl.R.P.No.837/2001 2 Officer in his office. PW3 claimed to have registered the case. Ext.P4 is the crime and occurrence report. Ext.P2 is the requisition to send the sample for chemical examination. Ext.P3 is the report of chemical examination. 4. PW3, Excise Inspector who claimed that material objects and records were produced before him by the Preventive Officer admitted that he was not in his office on 12.8.1995 and came back to office only on 14.8.1995. Ext.P4, the crime and occurrence report is not signed by PW3. Instead, it is signed by the Preventive Officer for and on behalf of PW3. Ext.P4 does not contain the date on which it was prepared and that document reached the court on 26.8.1995. When PW3 was asked the reason for the delay, he was not able to give any explanation. Though PW3 claimed that he registered the case, Ext.P4 as aforesaid shows that the Preventive Officer signed in it on his behalf. Therefore, the version of PW3 that he registered the case cannot be accepted. Though he claimed to have sent the material objects from his office on 14.8.1995, it is seen from the list of material objects that the same was prepared on 24.8.1995 and the material objects and documents reached the court on 26.8.1995 though the alleged detection was on 12.8.1995. There also, there is no explanation for the delay. Ext.P1, the mahazar said to be prepared by PW4 does not contain the specimen of his seal. It would appear that Ext.P1 reached the court on 13.10.1995 (the dated seal is not very clear but what I could discern is that it was produced on 13.10.1995). Ext.P2 , the request for sending the sample for chemical examination though prepared on 24.8.1995 was produced Crl.R.P.No.837/2001 3 in the court only on 26.8.1995. Ext.P2 also does not contain the specimen of the seal said to be used by the detecting officer. Ext.P3 is the report of chemical examination. It is stated therein that the seal on the sample bottle was intact and tallied with the sample seal provided. Though according to PWs 2 and 4 revision petitioner was arrested on 12.8.1995 and released on bail on the same day, that bail bond was not produced. According to the prosecution, by the time PWs 2 and 4 completed preparation of Ext.P1, the sureties who took the revision petitioner on bail came to the scene of occurrence. None of the neighbours have been cited as witnesses. In these circumstances, it is not safe to place reliance on the evidence of PWs 2 and 4 to find the revision petitioner guilty. She is entitled to an acquittal. Conviction and sentence are liable to be set aside. Resultantly, this revision petition is allowed. Conviction and sentence are set aside. Revision petitioner is acquitted of the charges against her. Bail bond is cancelled. Crl.M.P.No.3869 of 2001 will stand set aside. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.837/2001 4 Thomas P.Joseph, J. Crl.R.P.No.837 of 2001 ORDER 9th December, 2008