IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Crl.Rev.Pet.No. 233 of 1999() ------------------------------------------ CRA.NO.61 OF 1991 OF SESSIONS COURT, KOTTAYAM C.C.N.564 OF 1989 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM. ------------ PETITIONER: ACCUSED: ------------------------------------ BAI GEORGE, S/O.GEORGE JOSEPH, PULLANTHITHOTTIYIL, KADAPPOORU, KANAKKARY, KOTTAYAM DISTRICT. BY ADV. SRI.TOMY SEBASTIAN SRI.C.C.PADMAKUMAR RESPONDENT:COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. P. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.RAMKUMAR, J. ====================================== CRL.R.P. NO.233 OF 1999 ====================================== Dated this the 19th day of June 2008 ORDER The revision petitioner, who was the accused in C.C.564/1989 on the file of the JFCM, Vaikom for an offence punishable under Section 55(a) of the Abkari Act, challenges the conviction entered and sentence passed concurrently against him by the court below. 2. The case of the prosecution can be summarised as follows: On 24.7.1989 while PW1, the Excise Preventive Officer of Kadathuruthy Excise Office was on patrol duty, he got credible information to the effect that the accused was selling illicit arrack in his hotel by name “Jaseena” at Kuruppanthara. PW1 and his excise party proceeded to the said hotel after preparing a search memorandum and seized under Ext.P1 seizure mahazar, two bottles, one bottle of 650 ml. and another of 350 ml., of liquid which was identified by him as arrack. The accused was arrested and the two bottles containing the contraband substance together CRRP 233/1999 2 with two samples taken from the bottles were produced before the JFCM I, Vaikom. After reaching the Excise Range Office, Ext.P4 occurrence report was submitted on the basis of which Kaduthuruthy Excise Crime No.25/1989 was registered. The samples when forwarded to the chemical examiner were found to contain 15.67% and 14.54% by volume of Ethyl Alcohol. The accused has thereby committed an offence punishable under Section 55(a) of the Abkari Act. This in short is the case attempted to be proved against the revision petitioner. 3. Even though the case of PW1 that two bottles which were suspected to contain arrack were seized from the hotel which was apparently run by the revision petitioner could be believed, the prosecution can succeed only if it further proves that the samples taken from the two bottles and produced before the court ultimately reached the hands of the chemical examiner in a tamper-proof condition in pursuance of a forwarding note or requisition made by the officer who conducted the investigation. No forwarding note or requisition for sending the samples to the chemical examiner has been proved or marked in this case. Ext.P5 report of chemical analysis only shows that two sample CRRP 233/1999 3 bottles were despatched to the chemical examiner as per the covering letter of the Magistrate dated 1.1.1990. This means that the two sample bottles, even if they were produced before the Magistrate on 24.7.1989 itself, were lying there for nearly five months. It is not explained as to how these sample bottles were despatched to the chemical examiner even without a forwarding not or a requisition. Even assuming that a forwarding note had been filed before the Magistrate, there is no material to indicate that it was the same sample bottles which were packed and sealed in a tamper proof condition and despatched to the chemical examiner. There is no contemporaneous record of any order passed by the Magistrate for despatch of the sample to the chemical examiner. It is not clear as to who ordered to send the sample to the chemical examiner and who packed and sealed the samples. If it was done by the Thondi Section Clerk, there is no evidence to show that it was being done in a tamper proof condition and that too in the presence of the Magistrate. Unless and until the prosecution proves that the sample drawn from the bottles, which were allegedly seized from the hotel, reached the hands of the chemical examiner in a fool proof and tamper proof CRRP 233/1999 4 condition and it was those very samples which were chemically analysed at the chemical examiner's laboratory, the prosecution cannot succeed. In the absence of proof regarding the link evidence, the conviction entered and the sentence passed against the revision petitioner cannot be sustained and the revision petitioner is accordingly found not guilty of the offence under Section 55(a) of the Abkari Act and is acquitted of the same. He shall be set at liberty forthwith. This revision is allowed as above. 19th June 2008 V.RAMKUMAR, JUDGE css/