IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2752 of 2005() ------------------------------ CRA.357/2001 of I ADDL. SESSIONS COURT, TRIVANDRUM SC.393/1999 of ASSISTANT SESSIONS COURT, NEDUMANGAD .................... REVN. PETITIONER: --------------------- NELSON, S/O.ISHAQUE, KIZHAKKUMKARA VEEDU, PALLANCHIRA, KALLIYIKKAL, KOTTAKAKOM MURI, VITHURA VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.KRISHNADAS P. NAIR SRI.PRABHU VIJAYAKUMAR SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------- Crl.R.P.No.2752 of 2005 -------------------------------- Dated this the 3rd day of December, 2009 ORDER The revision petitioner was prosecuted by the Sub Inspector of Police, Vithura Police Station in Crime No.131 of 1997 alleging offences under Sections 55(a) and (h) of the Abkari Act before the Assistant Sessions Judge, Nedumangad in S.C.No.393 of 1999. The revision petitioner pleaded not guilty. Hence, he was sent for trial. On the side of the prosecution PWs.1 to 6 were examined. Exts.P1 to P4 and MOs.1 and 2 were marked. The revision petitioner took a defence of total denial. On his side, one witness was examined as DW.1. The learned Assistant Sessions Judge on appraisal of the evidence arrived a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to rigorous imprisonment for three years and a fine of Rupees one lakh with a default sentence of simple imprisonment for one year. In Criminal Appeal No.357 of 2001, the conviction was confirmed. The sentence was reduced to rigorous imprisonment for one year and a fine of Rupees one lakh. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition was filed. Crl.R.P.No.2752 of 2005 2 2. Heard either side and perused the records. The prosecution case is that while PW.6, the Sub Inspector of Police, Vithura Police Station moving on patrol duty along with PWs.5 and 4, the Head Constable and Police Constable, on 20/7/1997 at 7.30p.m. the revision petitioner was found selling arrack. He was caught red handed. The contraband was seized on the strength of Ext.P3 mahazar wherein PWs.2 and 3 are attestors. Returning to the police station the case was registered by Ext.P2 FIR. According to the prosecution when sample was sent for chemical examination, it was reported by Ext.P4 report of the Chemical Examiner that the sample sent for analysis contained 28.63 percentage by volume of Ethyl Alcohol. 3. PWs.1 to 3, who were examined as independent witnesses to prove the arrest and seizure, did not support the prosecution case. They were declared hostile and cross- examined, but no material was disclosed to support the prosecution case. PWs.4, 5 and 6 had given evidence regarding the arrest and seizure of the contraband. The court below believed their testimony and relying upon Ext.P4, arrived a finding of guilty. The evidence of PWs.4 and 5 would show that Crl.R.P.No.2752 of 2005 3 the contraband seized was sealed then and there. They would assert that no sample was taken at the spot. PW.6 who seized the contraband also has no case that the sample was taken from the spot. Ex.P4 would show that a sample containing 180 ml of a clear and colourless liquid alleged to be arrack was sent for chemical examination. As to who took the sample, when and where? Regarding that there is no evidence. Process of sampling is not proved. The result is that there is material lacking to connect the liquid seized with Ext.P4 on the basis of which the courts below found that it is a contraband liquid and entered the conviction under challenge. Though PWs.4 and 5 had deposed that they identified the contra band as arrack by smell, PW.6 who had seized the same has no case that he had smelt the contraband and satisfied that it is arrack. There is no mention in the evidence of PWs.4 and 5 that they are experienced to identify arrack by smell. Such being the materials on record, it could not be concluded that even the detecting officer had identified the contra band article as arrack. Since there is no evidence regarding sampling. Ext.P4 cannot be given reliance to arrive a conclusion of guilt. I find that the conviction Crl.R.P.No.2752 of 2005 4 under challenge is not sustainable for want of evidence to the effect that the liquid seized was contraband. The revision petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted and set at liberty. P.S.GOPINATHAN, JUDGE Skj.