IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 Crl.Rev.Pet.No. 339 of 2001(A) ----------------------------- CC.209/1996 of ADDL. SESSIONS COURT, ALAPPUZHA CRA.55/1998 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER: --------------------- VIVEKANANDAN, S/O. NARAYANAPANICKER ASHA SADANAM, VELIYANADU VILLAGE KUTTANAD TALUK BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 06/04/2010 PASSED THE FOLLOWING: ORDER ON CRL. M.P. NO. 1485 OF 2001 IN CRL. R. P. NO. 339 OF 2001A DISMISSED. SD/- M.L.JOSEPH FRANCIS, JUDGE 6.4.2010 M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. R.P. No. 339 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th Day of April, 2010 O R D E R This CRP is filed by the accused in C.C. No. 209 of 1996 on the file of Judicial First Class Magistrate Court, Ramankary. 2. The petitioner is the accused in C.C. No.209 of 1996 on the file of Judicial Magistrate of 1st class, Ramankary. PW4 the Excise Inspector Kuttanad range prosecuted the petitioner for offence under section 55(g) of the Abkari Act with the allegation that on 19.12.95 PW1, the Circle Inspector, Excise Enforcement and anti Narcotic Special Squad, Alappuzha was moving on patrol duty and that at about 11.30 am when he reached at Kidangara bridge he got an information that the petitioner had been attempting to manufacture illicit arrack at his Thaiparambil chira. Immediately PW1 prepared a search memorandum and forwarded the same to Crl. R.P. No. 339 of 2001 :2: the court and rushed to the place where the petitioner was alleged to have been manufacturing illicit arrack. At 1 p.m. he reached at Thaipparambil Chira in a courty boat. The petitioner was found inside a permanent shed at the chira. PW1 disclosed the purpose of his visit and in the presence of the witnesses searched the shed. But nothing was detected. Just 20 feet away from the shed PW1 found an iron bucket over a heap of sand. When inspected it was found having traces and smell of wash. Being got suspicious he removed the heap of sand. Then he found a plastic sack. Below the sack a few wooden planks were found. When the wooden planks were removed he found about 200 litres of wash in a plastic drum. He testified the liquid by smell and taste and satisfied that it was wash. From out of the wash in the drum 18 litres was taken as sample in a 20 litre capacity can and the rest was destroyed. Adjacent to the same PW1 noticed another heap of sand. when the same was removed a gunny bag was found. When the gunny bag was removed an iron drum with 200 litres of wash was found. The Crl. R.P. No. 339 of 2001 :3: nature of the liquid was testified by smell. and taste. From that wash another 18 litres was taken as sample and the rest of the liquid was destroyed. Ext.P1 seizure mahazar wherein Pws.2 and 3 are attestators was prepared. Ext.P2 is the search list and in the search list the petitioner/accused had signed as if he was the owner of the shed. Copy of Ext.P2 was also acknowledged by the petitioner. The petitioner was arrested then and there and was produced before PW4 who registered a case and Ext.P3 is the occurrence report. The petitioner was released on bail and Ext.P4 is the bail bond. Then the sample of liquid seized was sent for chemical examination. In Ext.P5 the Chemical Examiner reported that one of the samples contained 3.925 of ethyl alcohol by volume and other sample contained traces of ethyl alcohol. 3. Taking cognizance on the complaint filed by PW4 the learned Magistrate issued process to the petitioner. The petitioner entered appearance. Copies of the relevant records were furnished and the contents of the complaint was read over and explained to Crl. R.P. No. 339 of 2001 :4: the petitioner. The petitioner pleaded not guilty to the charge. 4. In the Magistrate court, on the side of prosecution Pws 1 to 6 examined and Exts.P1 to 6 were marked. On the defence side the accused was examined and Exts.D1 and D2 were marked. On considering evidence, the learned Magistrate found that the accused was in possession of wash and he was convicted under Section 55(g) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for 3 months. Against that conviction and sentence the accused filed Cr. Appeal No. 55 of 1998 before the Additional Sessions Judge, Alappuzha and that appeal was dismissed confirming the conviction and sentence. Against that judgment the accused filed this CRP. 5. Heard the learned counsel for the revision petitioner and learned Public Prosecutor. 6. Learned counsel for the revision petitioner submitted that the courts below found that the accused was not the owner of the Crl. R.P. No. 339 of 2001 :5: shed and the property from where the alleged seizure was made but went wrong in convicting the accused merely due to the fact that the property belongs to his family members. The learned counsel for the revision petitioner submits that the accused has proved that he has nothing to do with the property from where the alleged seizure was made and as such the very fabric of prosecution case is baseless. 7. PW1 was the C.I. of Alappuzha Excise Enforcement and Anti Nacoctic Squad. PW1 deposed that on 19.12.1995 at about 11.30 a.m while he was doing patrol duty he received an information that the accused was manufacturing illicit arrack in his Thyparambil Chira. When PW1 reached there at 1.00pm he found a shed in that chira and the accused was present in that shed. PW1 after informing the accused about the purpose of his visit in the presence of witnesses searched the shed and chira. PW1 saw M.O6 bucket with the smell of wash about 20 feet away from the shed above a heap of soil. PW1 removed the heap of soil and found Crl. R.P. No. 339 of 2001 :6: MO1 plastic drum with 200 litres of wash. MO1 was covered with MO4 plastic sack. From the wash 18 Litres of wash was taken in a canass and it was sealed and seized. 8. About 25 feet away from the said place another heap of soil was found. The soil was removed and there MO2 iron drum with 200 litres of wash was found. From that also 18 litres of wash was taken as sample in a can and it was sealed and seized. The rest of the wash was destroyed at the place itself. A mahazar and search list was prepared at that time. The accused was arrested. Ext.P1 is the mahazar prepared regarding the search and seizure of the wash in this case. He identified Ext.P2 search list prepared by him and the signature of the accused in Ext.P2 is marked as Ext.P2(a). The accused has received the copy of search list and he has affixed his signature on the back of the Ext.P2 stating that he has received the copy. That portion is marked as Ext.P2(b). M.O.3 series is the wooden pieces with which the plastic sack was covered in Mos 1 and 2. MO5 a jute sack found from the place of occurrence was Crl. R.P. No. 339 of 2001 :7: identified by the witnesses. He took the accused and thondi along with the case records to Kuttanad Excise range office. 9. PW4 gave evidence that while he was working as Excise Inspector of Kuttanad range, PW1 has detected the case and produced thondi before him. On that basis he had prepared Ext.P3 occurrence report. The accused was let on bail by a Preventive Officer of his office under Ext.P4 bail bond. He has given requisition for analysing the sample in Chemical analysis laboratory. Ext.P5 chemical analysis report was marked through him. He has produced Ext.P6 ownership certificate regarding the she in this case. He laid the charge against the accused before the court. In cross examination he stated that Ext.P6 certificate does not show the accused as the owner of shed bearing No.C.389. The said certificate shows the ownership of building bearing No.V.P.2/6. He denied the suggestion that this is a false case foisted against the accused. 10. PW2 and 3 are two independent witnesses identified their Crl. R.P. No. 339 of 2001 :8: signatures in Ext.P1 mahazar. But they turned hostile to prosecution case and gave evidence that they have not signed the mahazar at the chira belonging to the accused. 11. The accused when examined as DW1 has deposed that he had no property in Thaiparambil padam and the chira mentioned in this case does not belong to him. Ext.D1 is the certificate issued from the Village Officer stating that from 1995 onwards the accused is not having any property in Thyparambil padasekharam and chira. DW1 deposed that his son Rajesh was cultivating the property in this case and subsequently Rajesh transferred that property to Dhananjayan, the brother of DW1. The learned Magistrate on going through evidence came to the conclusion that the accused is not having any title over the chira in this case and that chira belongs to the family members of the accused. In the present case nothing was seized from the shed. At the time of seizure the accused was present in the shed. That does not mean that the accused was aware of the presence of wash in the heap of Crl. R.P. No. 339 of 2001 :9: soil found about 20 to 25 ft away from the shed. 12. The appellate court while discussing the evidence on record found that there is no evidence on record to come to a conclusion as to when, where and by whom the sample was taken. Ext.P5 would show that sample sent for chemical analysis contained only 180 ml each in 2 bottles. There is no wisper in the evidence of PW1 or PW4 that such quantity of liquor was taken as a sample either at the time of the seizure of the liquid or any time thereafter. So materials are lacking to come to a conclusion that Ext.P5 is in respect of liquir alleged to have been seized. Ext.P5 is not at all supporting the prosecution case. 13. The appellate court relied on the testimony of PW1 that he identified the liquid as wash by smell and taste as he is an experienced Excise Officer. In the decision reported in State of Kerala v. Sreedharan (1965 KLT 1002) it was held that in the absence of a report from public analyst it would not be safe to rely on smell alone. In the decision reported in Muthan Ankannithu v. Crl. R.P. No. 339 of 2001 :10: State of Kerala (1970 KLT 427), it was held that without chemical examination report the prosecution evidence would be insufficient to implicate a person in an offence under Section 55(a) of the Abkari Act. As there is no convincing evidence to show that liquid seized was wash and that it was seized from the possession of the accused, I am of the view that prosecution has failed to prove the guilt of the accused beyond reasonable doubt and as such the accused is entitled to get an acquittal. Accordingly this CRP is allowed. The conviction and sentence of the accused in C.C. No. 209 of 1996 on the files of JFCM, Ramankary under Section 55(g) of the Abkari Act is set aside and the accused is not found guilty of the said offence and he is acquitted and set at liberty. His bail bond is cancelled. M. L. JOSEPH FRANCIS, JUDGE dl/