IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 1961 of 2003() ------------------------ SC.353/2000 of ADDL. SESSIONS COURT (FAST TRACK I_ MANJERI. CP.47/2000 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT(S): ACCUSED --------------------- KUNHATHAN, S/O. CHENNEERI NAGAN, PULIKKAL, VALIYAPARAMBA, MALAPPURAM DISTRICT. BY ADV.MR.BABU S. NAIR RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF EXCISE, MAJERI-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1961 OF 2003 = = = = = = = = = = = = = = = Dated this the 25th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Fast Track Court, Manjeri in S.C.353/00. The accused was found guilty u/s 55(g) of the Abkari Act and was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1,00,000/- with a default sentence of one year. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1) Whether there is any evidence to convict the accused under the provisions of the Abkari Act? (2) Is there anything to interfere with the decision rendered by the learned Sessions Judge? Points 1 and 2: 3. It is the case of the prosecution that at about 2.15 p.m. on 24.7.98 the accused was found in possession of 18 liters of wash in a tin for the purpose of distilling illicit arrack Crl. Appeal NO. 1961 OF 2003 -:2:- near to a laterite quarry at Pulickkal and so he was liable to be prosecuted. 4. In the trial court PWS.1 to 7 were examined and Exts.P1 to P10 and Mos.1 to 3 were marked. The trial court convicted the accused. The learned counsel for the appellant had highlighted mainly one point before me which I feel is more than sufficient to answer this appeal. It is the case of the prosecution as revealed from the documents that the accused was found in possession of a tin which contained wash. According to the case of the prosecution in the seizure mahazar,Ext.P1 the sample was taken in a 750 ml. bottle in full and was sealed. Ext.P2 is the occurrence report wherein also in paragraph 5 column 2 it is specifically stated that 750 ml. wash was taken in a bottle as sample and sealed. Ext.P5 is a statement of one Shaji and there also what is stated is that sample was taken in 750 ml. bottle in full. Ext.P6 is another statement of one Gangadharan wherein also the sample taken is described as 750 ml. Ext.P8 is a list of thondi articles submitted before the Judicial First Class Magistrate, Crl. Appeal NO. 1961 OF 2003 -:3:- Malappuram wherein also item 2 is a 750 ml bottle containing full of wash taken as sample. Ext.P9 is a forwarding note. In that forwarding note originally 750 ml is written which is a carbon copy which has been corrected with ink as 375 ml. Ext.P10, chemical examiner's report also would show that what was received for chemical examination was a bottle of 375 ml. of a turbid brownish liquid alleged to be wash. So the documents referred to other than Exts.P9 and P10 would show that the sample was taken in a 750 ml bottle full and it is that what is produced before the Court. But what had been requested to be forwarded and what is forwarded is 375 ml bottle of brownish liquid. When such a situation had to be faced the prosecution made PW5 who is the expected to be a responsible Circle Inspector of Excise that 750 ml bottle if sent completely there would not be any remainder and therefore with the permission of the court 350 ml was taken as sample and remaining wash is sealed and it is marked as MO2. When sample is produced before court and it requires any opening up or separation a petition has to be filed and the accused has Crl. Appeal NO. 1961 OF 2003 -:4:- to be given notice and if at all it can be done it shall be done only in the presence of the accused so that no injustice is done to him. Time and again the courts have held in Abkari matters that the court has to satisfy its conscience that the sample that is taken is from the contraband seized from the accused and that it is the said sample that is sent for chemical examination. Correctly it is so for the reason that unless it is done the main link in an Abkari offence will be missing. 5. Now the explanation tendered by PW5 at the time of evidence is that if the entire sample is sent for chemical examination there will not be any residue left out to be preserved in the Court. It appears to be totally misconceived for the reason that the very same officers have filed a petition before the Magistrate court seeking permission to destroy the remaining 17.250 liters of wash taken possession of by them. A report was filed on 27.7.98 before the Judicial First Class Magistrate, Malappuram and the learned Magistrate had permitted it by directing them to destroy the wash and produce the tin as requested by the excise inspector. So at Crl. Appeal NO. 1961 OF 2003 -:5:- that point of time the excise inspector did not have any apprehension that some liquid has to be preserved to be marked before the court. So the very contention of the excise officer on 27.7.98 would show that they have no intention to keep any liquid in their possession. Now it has also to be stated that there is absolutely no scrap of paper or no evidence worth to show that it was under the orders of the court that this 750 ml bottle was changed into 375 ml bottle. When the materials are in the custody of the court and things have to be done it can be done only through judicial orders and not by taking oral permission from anybody. No petition is filed or produced, no order is seen passed and nobody is seen examined to prove that there was a change of bottle with the consent and orders of the Court. I feel that when the excise official was confronted with a difficult situation, most probably he would have tendered such an evidence which unfortunately has been accepted by the Court as well. In a criminal trial especially offence under Abkari Act the punishment imposed is to a tune of 10 years. Matter shall not Crl. Appeal NO. 1961 OF 2003 -:6:- be treated light heartedly to cause injustice or prejudice to a person who is facing the trial. I do not want to elaborate and it is less said about the better. Therefore I am totally convinced that there is no evidence before the Court to show that it was the sample that was taken was sent for chemical analysis. When it goes the entire basis of the prosecution fails and the accused is necessarily be acquitted and I do so. In the result, the Crl.Appeal is allowed and the conviction and sentence passed against the accused u/s 55(g) of the Abkari Act is set aside. He is found not guilty of the offence u/s 55(g) and is acquitted and set at liberty. M.N. KRISHNAN, JUDGE. ul/-