IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 92 of 2003 ------------------------------------------ CRA.55/1999 of ADDL.SESSIONS (ADHOC-II) COURT, KASARGOD CC.791/1996 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER/APPELLANT/ ACCUSED: K.VISWANATHAN, AGED 26 YEARS, S/O. K.NARAYANN, ARAMANGANAM DESOM, KALANAD VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT/RESPONDENT/COMPLAINANT: STATE-REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.278/2003 IN CRRP 92/2003 DISMISSED 17.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.92 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced to rigorous imprisonment for three months and a fine of Rs.15,000/- for the offence under Section 58 of Abkari Act by Judicial First Class Magistrate-II, Hosdrug in C.C.No.791/1996. Though he challenged the conviction and sentence in Crl.A.No.55/1999, learned Additional Sessions Judge (Adhoc-II), Kasargod, on re-appreciation of the evidence, dismissed the appeal confirming the conviction and sentence. This revision is filed challenging the concurrent conviction and sentence. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioner is that courts below did not properly appreciate the evidence. Prosecution case is that 25 packets of Karnataka arrack were seized CRRP 92/03 2 from the petitioner on 17.9.1996, by PW2, the Circle Inspector of Excise. Finding that 25 packets contained Karnataka arrack, poured it in a five litre can and took a sample of 180 ml. from it and sealed them in the presence of the petitioner and the witnesses. The sample was sent for chemical analysis. On chemical analysis, it was found that presence of ethyl alcohol in the sample is 34.51%. Prosecution case was accepted, in spite of the fact that PW1, the only eye witness examined, turned hostile to the persecution and deposed that he did not witness the seizure. The can and the sample were produced before the court only on 11.10.1996 and there was no explanation whatsoever for the inordinate delay. There was no assurance for the identity of the material object produced. Petitioner contended that courts below should not have convicted him on the evidence of PW2 alone. It is argued that possibility of substituting the sample or the can cannot be ruled out and on the CRRP 92/03 3 solitary evidence of PW2, courts below should not have found that it is the very same article, which was seized from the petitioner, that was produced before the court and the conviction is not sustainable. 4. Learned Public Prosecutor pointed out that the delay in production of the sample and the can were considered by the trial court and the appellate court and it was recorded that no prejudice was caused and therefore, for the sole reason of delay in production, the concurrent conviction cannot be set aside. 5. Prosecution case is that PW2, the then Excise Inspector, Hosdrug Range, along with the Excise party, was on patrol duty at about 1.15 p.m. on 17.9.1996. When they reached near Railway Gate, Pallikkara, it was found that petitioner was walking carrying a plastic sack. It is the case that as petitioner was found perturbed by the sight of the Excise party, they apprehended the CRRP 92/03 4 petitioner and opened the sack and found that it contained 25 packets of Karnataka arrack. When one packet was opened, from the smell and taste, PW2 was convinced that it was arrack. He, therefore, arrested the petitioner and seized the articles. 6. Exhibit P1, the seizure mahazar, with the evidence of PW2, establish that 25 packets were opened and poured into a new can purchased by PW2 and from the total quantity, 180 ml. was taken as sample and both the can and the sample were sealed in the presence of the accused and the attesting witnesses. But, neither the seizure mahazar nor the evidence of PW2 establish that either the signature of the accused or the attesting witnesses was obtained on the seal affixed on the can or the sample. Though PW2 deposed that seal was affixed with a KE button, Exhibit P1 does not show that it was sealed with KE button. Whatever it be, evidence of PW2 does not show that the sample of the seal was produced before the court and forwarded to the CRRP 92/03 5 chemical analyst. Though Exhibit P3, the report of chemical analysis, shows that the sample was found properly sealed, there is no material to hold that the seal found at the Laboratory was the same seal which was affixed on the spot when the petitioner was arrested and Exhibit P1 seizure mahazar was prepared. Moreover, even though petitioner was arrested and the contraband article was seized on 17.9.1996, the property list, by which the samples were produced before the court was not marked, the records show that the property list was prepared only on 10.10.1996 and produced before the court on 11.10.1996. Therefore, it is absolutely clear that the contraband article, which was allegedly seized on 17.9.1996, was produced before the court only on 11.10.1996. 7. Evidence of PW2 does not show who was in custody of the contraband article from 17.9.1996 till it was produced before the court on 11.10.1996 and whether it was kept in the same stage. In any CRRP 92/03 6 event, if there is no guarantee that the contraband article seized and produced before the court is one and the same, based on Exhibit P3, the report of chemical analysis or even MO3, the plastic can or its contents, it cannot be said that petitioner was in possession of arrack on 17.9.1996 as found by the courts below. When the possibility of substituting the article cannot be ruled out, petitioner is, at least, entitled to get the benefit of doubt. In such circumstances, the conviction and sentenced passed by the learned Magistrate in C.C.No.791/1996, confirmed by learned Additional Sessions Judge in Crl.A.No.55/1999 can only be set aside. Revision is allowed. Conviction and sentence in C.C.No.791/1996 on the file of Judicial First Class Magistrate's Court-II, Hosdrug, confirmed in Crl.A.No. 55/1999 on the file of Additional Sessions (Adhoc-III), Kasargod is set aside. Petitioner is found not guilty of the offence under CRRP 92/03 7 Section 58 of Abkari Act. He is acquitted. The bail bond executed by the petitioner stands cancelled and he is set at liberty. If petitioner has deposited any portion of the fine amount before the trial court or the appellate court, it shall be refunded to him. 17th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 92/03 8 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.92 of 2003 -------------------------- ORDER 17th May, 2010