IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.Rev.Pet.No. 3059 of 2003 ---------------------------------------------- CRA.393/1998 of SESSIONS COURT, TRIVANDRUM CC.488/1996 of JFCM-II, ATTINGAL .................... REVN. PETITIONER/APPELLANT/ACCUSED: SURENDRAN, S/P PARAMU, KIZHAKKUMKARAVEEDU, KATTAYIKONAM, MADAVUPARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.K.MUHAMMED RESPONDENT/RESPONDENT/COMPLAINANT: THE EXCISE INSPECTOR, KAZHAKKOOTTAM EXCISE RANGE OFFICE, KAZHAKKOOTTAM REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.3059 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.488/1996 on the file of Judicial First Class Magistrate's Court-II, Attingal, was convicted and sentenced for the offence under Section 58 of Abkari Act. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A. No.393/1998. Learned Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that as per the prosecution case, MO1 can, containing illicit arrack, was seized on 29.5.1996 and Exhibit P1 mahazar, by which MO1 can was seized, does not disclose that any sample was taken and Exhibit P3 CRRP 3059/03 2 certificate of chemical analysis shows that what was received in the Laboratory is a bottle containing 180 ml. of clear and colourless liquid and there is no evidence as to how a bottle of 180 ml. was prepared. It was argued that though Exhibit P1 mahazar shows that the seized can was sealed, neither the mahazar nor the evidence of PW1 nor PW3 show that any signature of the witness or the petitioner was obtained on the seal and in such circumstances, the delay in reaching the contraband article before the court is fatal. It was pointed out that there is no evidence as to when MO1 can reached the court and in such circumstances, based on Exhibit P3 report, petitioner cannot be convicted and he is to be acquitted. 4. Learned Public Prosecutor submitted that evidence of PWs 1, 3 and 4 with Exhibit P1 mahazar establish that MO1 can was in the possession of the petitioner and Exhibit P3 report establishes that it was illicit arrack and therefore, the conviction CRRP 3059/03 3 is legal. 5. Exhibit P1 with the evidence of PWs 1 and 3 show that petitioner was arrested and was released on bail. MO1 can was seized on 29.5.1996. Exhibit P1 mahazar does not show that any sample was prepared before MO1 can was sealed. Evidence show that there was no case either for PW1 or PW3 or PW4 that any sample was prepared from MO1 can at any point of time. Exhibit P3 report shows that what was received in the Laboratory was one sealed bottle containing 180 ml. of clear and colourless liquid, allegedly to be arrack involved in Crime No.60/1996 of Kazhakkoottam Excise Range. It shows that the seal was intact and tally with the seal provided. It was not shown what was the seal forwarded to the Laboratory. 6. There is force in the submission of the learned counsel appearing for the petitioner that in the absence of any evidence regarding preparation of the sample and forwarding the same CRRP 3059/03 4 to the Laboratory, based on Exhibit P3 report, it cannot be said that MO1 can contained illicit arrack. True, Exhibit P3 report shows that the sample examined at the Laboratory establishes that it contained 26.85% by volume of ethyl alcohol. But the question is whether that sample was prepared out of the liquid found in MO1 can after its seizure. Exhibit P1 mahazar shows that no sample was prepared and instead, the can as such was sealed. Evidence of PWs 1, 3 and 4 do not show who produced MO1 can before the court or when it was produced. On verification of the records, it is clear that MO1 can was produced before the court along with the charge sheet dated 18.6.1996. From the court seal, it can be presumed that the charge sheet, Exhibit P1 mahazar as well as MO1 can reached the court on 18.6.1996. There is no evidence as to who has been in custody of the seized MO1 can from 29.5.1996, the date of its seizure, till it reached the court on 18.6.1996. CRRP 3059/03 5 There is also no evidence to show whether it was kept under safe custody during that period. When the signature of the attesting witness or the petitioner was not obtained on the seal, even though when MO1 can reached the court there was seal, it cannot be said that it was the same bottle containing the same liquid, which was seized from the petitioner on 29.5.1996. In any way, possibility of tampering cannot be ruled out. Though, along with the final report a request made by PW4 to forward the sample for chemical analysis was also seen, it was not disclosed in evidence as to who prepared the sample and how it was prepared. In the absence of any evidence, petitioner is definitely entitled to contend that Exhibit P3 report is not a report prepared on examination of the sample taken from MO1 can. If that be so, on that short ground, conviction is to be set aside. Revision is allowed. Conviction of the petitioner for the offence under Section 58 of CRRP 3059/03 6 Abkari Act in C.C.No.488/1996, as confirmed in Crl.A.No.393/1998, is set aside. Petitioner is found not guilty of the offence. He is acquitted. The bail bond executed by him stands cancelled. 29th July, 2010 (M.Sasidharan Nambiar, Judge) tkv