IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 30TH DAY OF MARCH 2011/9TH CHAITHRA 1933 CRL.A.No. 1248 of 2004 ( ) -------------------------- AGAINST THE ORDER/JUDGMENT IN SC.349/1999 of ADDL. DISTRICT COURT (ADHOC), KOLLAM DATED 05-07-2004 APPELLANT/ACCUSED: ------------------------ GOPALAKRISHNAN, S/O.PULLAN, KOCHUKALLELAZHIKATHU VEEDU, MATHILAKAM ITI WEST THEKKE MURI, EAST KALLADA VILLAGE. BY ADVS.SRI.T.M.CHANDRAN SRI.R.ARUN RESPONDENT/COMPLAINANT/STATE: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR P.A SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J ------------------------------ Crl.Appeal.No.1248 OF 2004 ---------------------------------------- Dated 30th March, 2011 J U D G M E N T This appeal arises from a conviction and sentence passed against appellant to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.1,00,000/- under Section 55(a) of Abkari Act. According to prosecution on 7.6.1998 at about 6 pm, accused was found in possession of two litres of arrack in a can at a plantain garden. He was arrested from the spot and in the presence of witnesses the articles were seized under a mahazar-Ext.P1. A crime was registered by PW4 the Sub-Inspector and after investigation a charge was laid against accused under section 55(a) of Abkari Act. 2. Prosecution examined PW1 to 4 and marked Ext.P1 to P5 and MO1 on its side. Accused denied all allegations made against him and contended that when he was waiting for a bus a person abandoned a can and ran away and a police jeep came there and appellant was asked who that person was. Crl.A. No.1248/04 2 When he pleaded ignorance, he was forceably taken to police station and a false case was lodged against him. He was waiting for the bus to go to his sister's house. 3. PW3 and 4 are police officials. PW4 is detecting officer. He has registered a crime investigated and laid charge. He gave evidence consistent with the prosecution case. PW3 and 4 deposed that on 7.6.1998 on getting information, they proceeded to the place of occurrence when they found the appellant holding a glass and a can and on seeing the police he attempted to run. He was apprehended and article found in his possession were examined. 4. Appellant was having two litres of arrack in his possession in a can having 21/2 litres. Sample of 200 ml was taken in a bottle having capacity of 375 ml. The label was affixed on the sample and it was sealed also. Can was also sealed from the place of occurrence and those were seized under a mahazar. PW3-police constable also gave evidence corroborating the evidence of PW4 regarding detection of offence, sampling, seizure and preparation of mahazar. 5. Learned counsel for appellant submitted that this is a case where it is doubtful whether articles seized from Crl.A. No.1248/04 3 appellant's custody was the one which examined by chemical analyst. He pointed out that there are several discrepancies relating to TR number, CP number etc. and also the nature of the bottle in which sample was taken. Referring to the evidence of PW4, it is submitted that there are discrepancies in TR number which was assigned to material objects seized in this case. It is by assigning the TR number that articles were being sent to court. Though in Ext.P4 Chemical Analyst Report number is shown as TR.no.244/98, in the charge sheet, Ext.P5 the number is shown as TR.no.245/98. Learned Public Prosecutor submitted that it was only a clerical error and an explanation was given to that effect in the reexamination of PW4. 6. It is true that an explanation was given by PW4 that number was shown by mistake in Ext.P5. But according to learned defence counsel that alone was not the mistake. PW4 gave evidence in cross examination that as per the property list, Ext.P3 the sample was taken in a bottle having capacity of 200ml. But at the time of evidence, PW4 deposed that sample was taken in a bottle having capacity of 375 ml. It is also submitted that In Ext.P4, the number of committal Crl.A. No.1248/04 4 proceedings was shown differently. 7. In Ext.P4, the number was referred to as C.P 122/98 but it was struck of and C.P.170/98 was later given. It is the said number which was assigned to this case. Taking all these discrepancies, it is submitted that here is every possibility for a mistake being committed and the prosecution has not proved its case beyond reasonable doubt that article being in possession of appellant was the one examined as per Ext.P4. 8. On hearing both sides and on going through the records, I find that there are several mistakes committed in respect of C.P. number, TR. number as well as the details of the bottle in which sample was taken and the capacity of the bottle and hence there is every possibility to commit a mistake in sending the appropriate sample to the Chemical Analyst. Therefore, prosecution has not proved its case beyond reasonable doubt that article seized from the possession of appellant itself was examined by chemical analyst and hence the conviction and sentence passed against appellants cannot be sustained. In the result the following order is passed: Crl.A. No.1248/04 5 1. Conviction and sentence passed against appellant under Section 55(a) of Abkari Act are set aside. 2. Appellant is found not guilty and he is acquitted of offence under section 55(a) of Abkari Act. 3. The appellant is set at liberty forthwith. This appeal is allowed. Sd/-K. HEMA, JUDGE. Sou. /True copy/ P.A to Judge