IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 CRL.A.No. 1842 of 2003() ------------------------ SC.394/2000 OF ADDITIONAL SESSIONS COURT (AD-HOC) II, KASARAGOD. APPELLANT/ACCUSED: ------------------------------ T.H. MOHANAN, 42/99, S/O. AMBU, PODIPPAPPAM, PANAYAL VILLAGE. BY ADV. SRI.SREEPRAKASH K.NAIR RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------- 1. THE S.H.O., BEKKAL POLICE STATION, REPRESENTED BY S.I. OF POLICE, BEKKAL. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. PUBLIC PROSECUTOR – SRI. REJI JOSEPH . THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL.A. 1842 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 15th DAY OF DECEMBER, 2011. J U D G M E N T The Additional Sessions Judge (Ad-hoc) II, Kasaragod, in S.C. 394/2000 convicted the appellant for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,00,000/- with a default sentence of rigorous imprisonment for three months. Assailing the above conviction and sentence, this appeal is filed. The prosecution case is that at 7.15 p.m. on 18.5.1999 the appellant was found possessing 50 packets, each containing 100 ml. arrack at the bus waiting shed near Podippallam in Panayal Village. On getting information, PW.3 the Sub Inspector of Bakal Police Station went to the spot and caught the appellant red-handed. The arrack and the packets were seized for which Ext.P1 seizure mahazar was prepared. The contents from six packets were taken in two bottles as samples and sealed. Returning to the police station PW.3 registered a case for which Ext.P4 FIR was prepared. The investigation was conducted by pW.3 and submitted the charge sheet alleging offence under Section 55(a) of the Abkari Act. CRL.A. 1842/2003 2 2. I have heard Advocate Sri. Sreeprakash K. Nair, learned counsel appearing for the appellant and Sri. Reji Joseph, the learned Government Pleader. Perused the judgment and the evidence on record. 3. In support of the prosecution case, PW.3 had given evidence. PW.1, an attestor to Ext.P1 seizure mahazar had also supported the prosecution case, regarding the arrest and seizure of 50 packets from the custody of the appellant. The sampling process was also deposed by PW.3. But in cross examination, PW.3 had to admit that no label was affixed either on the remaining packets or on the sample bottles. That means there was no identifying marks over the sample. PW.3 had also to admit that the samples were forwarded to the Court only after one month ie. on 18.6.1999. To the question as to where the material objects were kept, PW.4 deposed that he was the custodian and that the articles were entrusted to the station writer. Curiously enough, the station writer was not examined. As a result, regarding the forwarding of the sample there is no evidence. Such being the materials on record, in the absence of any identifying label, the possibility of the mistaken identity of the sample cannot be ruled out. In Ext.P7 report of the chemical examiner, it is certified that the sample contained ethyl alcohol. But for want of evidence to the effect that the article sent for analysis was the sample taken from the appellant, it is not safe to rely upon CRL.A. 1842/2003 3 Ext.P7. There is no case for PW.3 that he had tested the liquid contained in the packets either by smell or taste or by any reliable means. Therefore, to establish the nature of the liquid the only document available is Ext.P7. Since no label was affixed over the sample bottles and there was delay in producing the sample before the court and that the person who was in custody of the material objects was not examined, it is not safe to convict the appellant. The appellant is entitled to the benefit of reasonable doubt. In the result, the appeal is allowed. While setting aside the conviction and sentence under challenge the appellant would stand acquitted. He is directed to appear before the trial court within a month and to execute a bail bond with such terms and conditions as may be prescribed by the trial court under Section 437A of the Code of Criminal procedure, failing which the trial court shall initiate coercive steps and get the bond executed. P.S. GOPINATHAN, (JUDGE) knc/-