IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 Crl.Rev.Pet.No. 149 of 2001() ----------------------------- CRA.253/1997 of SESSIONS COURT, KOZHIKOE CC.688/1995 of JUDL.MAGISTRATE OF FIRST CLASS,KOYILANDY .................... REVN. PETITIONER(S)/APPELLANT/FIRST ACCUSED --------------------- DAMODARAN NAIR, S/O KUNHIRAMAN NAIR, KAIPRAMKANDI HOUSE, KUNNATHARA AMSOM DESOM BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------- 1. THE EXCISE INSPECTOR, BALUSSERY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.149/2001 -------------------- Dated this the 9th day of February, 2009 ORDER The first accused in C.C.No.688/95 on the files of the Judicial Magistrate of First Class, Koyilandy, is the petitioner in this Revision. . He along with the second accused, was prosecuted for the offence punishable under Section 55(b) of the Abkari Act. The case of the prosecution was that PW1, the defacto complainant, who was working as the Sub Inspector of police, Atholi police station, on receiving information regarding illicit distillation of liquor in the house compound of Veluthedath Thazhakuni Ramesan (A2), while engaged in night patrol duty, proceeded to the spot. He and his patrolling party found two person engaged in making illicit liquor in the thatched portion of the house of A2. On seeing the patrolling party, one of the persons engaged in the process of distilling liquor, ran away. A1 was arrested from the scene of occurrence. Mos1 to 5 vessels stated to be used for the purpose of illicit manufacture of liquor were taken Crl.R.P.149/2001 2 into custody, as evidenced by Ext.P2 seizure mahazar, witnessed by PW2. The articles along with two sample bottles of arrack containing 500 ml. and 375 ml, were produced before PW3, the Excise Inspector on the same date, ie, 22.2.1995. Labels were affixed on Mos1 to 5 vessels and sample bottles of liquor, which were signed by PW1, and they were produced before PW3. PW3 then filed Ext.P3 occurrence report before the Magistrate. Samples were sent for chemical analysis on 18.3.1996 and Ext.P5 is the chemical analyst’s report. 2. PW1 is the Sub Inspector of police, who conducted the search. PW2 is stated to be a mahazar witness who turned hostile. PW3 is the Excise Inspector, who conducted the investigation and filed the report before the Magistrate. 3. Learned Magistrate, on appreciation of the evidence, found that there is insufficient evidence to warrant conviction of A2. It was found that A2 was not arrested from the scene of occurrence. He was arrayed Crl.R.P.149/2001 3 as an accused. There upon, he had appeared before the Excise Inspector on 22.2.1995, and was enlarged on bail. No evidence was adduced to show that the property where the alleged distillation was conducted, belongs to A2. Mahazar witness did not identify A2. PW1 was also not in a position to depose that he had identified A2, before A2 had run away from the spot. In these circumstances, trial Court proceeded to acquit A2. 4. In so far as A1 is concerned, the trial Court went on to find that his presence in the scene of occurrence was spoken to by PW1 and that the same was affirmed by PW2 also, though the latter was declared hostile. On the basis of the chemical analysis report, and the evidence of PW1, the trial Court went on to find A1 guilty of the offence under Section 55(b) of the Abkari Act and he was convicted and sentenced to undergo simple imprisonment for a period of six months and was also directed to pay a fine of Rs.1,000/- under Section 55 Crl.R.P.149/2001 4 (b). The conviction and sentence were affirmed by the lower appellate Court and hence the revision. 5. I heard Mr.T.G.Rajendran, learned counsel for the petitioner and learned Public Prosecutor. 6. Learned counsel for the petitioner submits that a crucial factor regarding the identity of MOs1 to 5, which alone were produced by the prosecution to substantiate the allegation of illicit manufacture of liquor, was completely misconstrued by the Courts below. He refers to the evidence of PW1 to show that the Sub Inspector of police had admitted that the labels seen affixed on MOs1 to 5, when they were produced before the Court, were not the labels which were affixed by him. So also PW3 also admitted that the labels found on MOs1 to 5 were not the labels which were affixed by the police at the time of handing over the same to the Excise party. But the Court below nevertheless proceeded to accept the version of the complainant on the ground that PW1 had deposed that he was in a position to identify the Crl.R.P.149/2001 5 vessels without the labels, as those vessels which he had taken into custody at the time of seizure in the early hours of 22.2.1995. Grave irregularity has been brushed aside by the Courts below, it is contended. It was further pointed out that 500 + 375 ml liters of arrack were stated to have been taken as samples and it was these samples which were sent for chemical analysis. No doubt, Ext.P5 report has been produced before the Court. But there is considerable delay in the requisition Ext.P4, being submitted before the Court, though it is seen to have been drawn up on 22.2.1995. 7. Having gone through the evidence and having heard learned counsel on either side, and also taking note of the fact that A2 was acquitted by the trial Court, I am of the view that the conviction of A1 in the present case does not seem to be warranted. I do not find any tenable explanation having been offered by the prosecution for the error in the labelling of MOs 1 to 5 produced before the Court. PW1 had clearly deposed that the labels which are seen affixed on MOs1 to 5 as Crl.R.P.149/2001 6 produced before the Court, are not the labels which were affixed by him at the time of seizure. There is no explanation for this irregularity. The trial Court brushed aside this apparent lapse on the premise that PW1 was able to identify the vessels as such. I do not think it was a correct approach. Vessels in question were quite common vessels and there was no distinguishing feature discernible from any of these vessels. Search was conducted in the darkness in the early hours of 22.2.1995. PW1 deposed after a period of almost three years. The question is whether there was any tenable explanation for the error in the labels which were seen affixed on the vessels. 8. Coupled with this is the version given by PW3 that the labels affixed on the vessels as he originally found were not the labels affixed by the police party. There is no explanation for this aspect. 9. I also do not find any explanation as to why the samples of liquor sent for chemical analysis, were not Crl.R.P.149/2001 7 produced as material objects. The labels which were affixed on those samples have also not been produced. Learned Public Prosecutor submits that since the samples were not of a considerable quantity, they might not have been returned by the chemical analyst. If that be so, I do not find any explanation for the failure to do so. 10. I also do not think it is a matter of insignificance that the name of A1 does not find a place in Ext.P2 seizure mahazar. A2 alone is seen mentioned therein. Even according to PW1, he was not able to identify the person who had run away from the scene of occurrence, but had nevertheless proceeded to include A2 in the array of accused. Trial Court itself had found the evidence against A2 inadequate and had proceeded to acquit him. The apparent discrepancy in the name of the person from whom the articles were alleged to have been seized as noted in Ext.P2 seizure mahazar and the version given by PW1 should have been taken note of by the Courts below. Crl.R.P.149/2001 8 11. I am of the view that the aforementioned lapses are enough to throw a serious doubt in the mind of the Court, as to the acceptability and veracity of the evidence adduced by the prosecution. In these circumstances, I am of the view that it would be unsafe to convict A1 on such evidence. 12. Accordingly, the Criminal Revision Petition is allowed and the conviction and sentence of A1 in C.C.No.688/95, is set aside. A1 is acquitted. The bail bond executed by him shall sand cancelled. If any amount has been remitted by him by way of fine, same shall be refunded within three months from the date of receipt of a copy of this order. V.GIRI, Judge mrcs