IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 CRL.A.No. 157 of 2003() ----------------------- SC.151/2000 of ADDL. SESSIONS JUDGE, (ADHOC-II), KASARAGOD. .................... APPELLANT(S): ACCUSED --------------------- B.SUNDARA RAI, S/O. LALITHA RAI, RAJAKUDLU DESOM, ENMAKAJE VILLAGE, KASARAGOD TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): COMPLAINANT AS STATE ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, BADIADKA EXCISE RANGE. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 157 OF 2003 = = = = = = = = = = = = = = = Dated this the 27th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-II, Kasaragod in S.C.151/00. Accused was charge sheeted for offence u/s 55(a) of the Abkari Act and was convicted thereunder and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to hold that the accused is guilty of the offence? (2) Is there anything to interfere with the decision rendered by the court below? Crl. Appeal NO. 157 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. I am not dealing in detail with the materials now for the reason that the matter requires reconsideration at the hands of the court below. 4. Learned counsel for the appellant has highlighted before me that in Ext.P1 seizure mahazar the colour of the liquid seized is shown as ................................(red in colour). What has been sent for chemical analysis is a sealed bottle containing 360 ml of pale yellow coloured liquid alleged to be of Indian Made Foreign Liquor sample involved in the case. The learned Sessions Judge had considered this matter very light heartedly and when such a contention was raised the court had observed that it is only a minor discrepancy. I am afraid that such a conclusion should not have been arrived at by the court below. In a case coming under the provisions of the Abkari Act law is very particular that the liquid seized from the accused is the liquid produced before court and that is the liquid which is sent for chemical analysis. The percentage of ethyl alcohol which makes the whole thing as an offence Crl. Appeal NO. 157 OF 2003 -:3:- depends upon the result of the chemical analyst. Therefore the court has to find out what is the real position. Now it is quite possible that the red coloured is written as a mistake. But it can be very easily verified from the court itself since they have produced all other bottles as material objects before court. An examination by the court would be sufficient in that regard. Similarly there may be scientific process by which some times after a lapse of time the colour may change. It is also a matter which can be proved by the prosecution by producing scientific evidence before court. Unless one is able to point out the sample that is tested is a liquid seized from the accused one cannot connect the accused with crime. Therefore on that point the matter requires reconsideration. Therefore I set aside the conviction and sentence passed by the court below. Since the matter is going back I permit both the parties to adduce evidence in support of their respective contentions. In the result the Crl.Appeal is allowed and the conviction and sentence passed by the trial court are set aside and the matter is remanded back to the trial court for fresh disposal in accordance with the discussion made in the previous Crl. Appeal NO. 157 OF 2003 -:4:- paragraphs. Parties are directed to appear before the court below on 8.10.2009. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 157 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 157 OF 2003 = = = = = = = = = = = J U D G M E N T 27th August, 2009