IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 CRL.A.No. 455 of 2003() ----------------------- SC.1010/2002 of III ADDL.SESSIONS COURT, KOLLAM .................... APPELLANT(S): ACCUSED --------------------- MOHANAN, AGED 34, S/O. LAKSHMANAN, BHARANETHU VEEDU, GOPALASSERY, AYATHIL CHERRY, VADAKKEVILA VILLAGE. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): COMPLAINANT -------------------------- 1. EXCISE INSPECTOR, KOLLAM EXCISE RANGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 455 of 2003 * * * * * * * * * * * * * * * * * * Dated: 12th day of October 2009 JUDGMENT The appellant (now no more) who was the first accused in S.C. 1010/2002 on the file of the III Addl. Sessions Judge, Kollam, challenges the conviction entered and the sentence passed against him by the court below for an offence punishable under Section 55 (a) of the Abkari Act. 2. The case of the prosecution as revealed by the oral and documentary evidence is the following:- On 22-5-1999 at about 5.30 p.m. P.W.4, the Excise Inspector, Kollam Range while proceeding on patrol duty along with P.W.3, the Excise Preventive Officer found the accused in possession of 8 litres of arrack in MO1 white plastic jerry can in front of Durga Devi Temple, Gopalassery Bhagom in Kollam Taluk. On being convinced that the contents of the jerry can carried by the accused was arrack as indicated by its smell and taste, P.W.4 arrested the accused and seized the arrack after drawing a sample of 250 ml. therefrom and took the jerry can Crl.Appeal No. 455 of 2003 -:2:- together with the arrack and the sample bottle into custody under Ext.P1 mahazar to which P.W.1 affixed his signature as an attestor. The accused along with the properties and the seizure documents were taken to the Excise Range Office, Kollam from where Ext.P2 crime and occurrence report as C.R. No. 36/99 was registered. The accused and the properties were produced before Court. P.W.4 claims to have filed a report before the Magistrate for sending the sample to the Chemical Examiner for analysis. As per Ext.P3 certificate of chemical analysis the sample was found to contain 31.63 percent by volume of Ethyl Alcohol. Since the accused was found in possession of arrack in contravention of the provisions of Sections 8(1) and 55 (a) of the Abkari Act, he has committed offences punishable under Sections 8(2) and 55(a) of the Abkari Act. 3. The alleged seizure of the contraband arrack was on 22-5-1999. But the properties were produced before the J.F.C.M. II, Kollam only on 3-6-1999 and were received as T 268/99. Neither P.W.3 nor P.W.4 has deposed that until the production of the properties before court they were in the safe custody of P.W.4, the detecting officer. In fact, going by the Crl.Appeal No. 455 of 2003 -:3:- testimony of P.W.4 it was he who produced the properties and the accused soon after the detection. But the property list available in the lower court records shows otherwise. Nobody has deposed before court that the properties were in the custody of P.W.3 or P.W.4 until 3-6-1999. Eventhough P.W.4 deposed about giving a report for sending the sample bottle for analysis, no such report or forwarding note or requisition has been produced or marked in the case. The lower court records also do not contain any copy or forwarding note or requisition by any of the Excise Officials. If so, it is not known as to what prompted the Magistrate to send the sample bottle for chemical analysis on 14-6-1989. The thondi section clerk who is the custodian of the properties before the Magistrate was not examined to prove that it was the bottle which was produced on 3-6-1999 that was despatched to the Chemical Examiner's Laboratory, Thiruvananthapuram on 14-6-1999. The prosecution has failed to establish that Ext.P3 certificate of chemical analysis pertains to the sample which was allegedly drawn by P.W.4 from MO1 jerry can. Without proving this link evidence it cannot be concluded that the contents of the jerry can allegedly carried by Crl.Appeal No. 455 of 2003 -:4:- the accused was arrack. See State of Rajasthan v. Daulath Ram- AIR 1980 SC 1314 , Sasidharan v. State of Kerala – 2007 (1) KLT 720 and Valsala v. State of Kerala - 1993 (2) KLT 550 SC . Such being the position, the conviction recorded and the sentence passed by the Court below overlooking the above vital aspects cannot be supported. The appellant is found not guilty of the offence punishable under Sections 8(2) and Sec. 55 (a) of the Abkari Act and is accordingly acquitted thereunder. In the result, this appeal is allowed as above . Dated this the 12th day of October 2009 Sd/- V. RAMKUMAR, (JUDGE) ani. /true copy/ Crl.Appeal No. 455 of 2003 -:5:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 455 of 2003 * * * * * * * * * * * * * * * * * * Dated: 12th day of October 2009 JUDGMENT