IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 Crl.Rev.Pet.No. 2740 of 2007() ------------------------------ CRA.435/2005 of ADDL.SESSIONS JUDGE (ADHOC-II),THALASSERY SC.7/2001 of ADDL.ASSISTANT SESSIONS COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- DIVAKARAN, S/O.RAMAKRISHNAN, AGED 38 YEARS, KELAKOM AMSOM, ADAKKATHODE. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): STATE: --------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.2740 OF 2007 ------------------------------------------ Dated 1st January 2009 O R D E R Revision petitioner was concurrently convicted for the offence under Section 55(a) of Abkari Act for possession of 2 liters of arrack on 26/6/1999. Prosecution case is that PW4 Sub Inspector of Police, Kelakam got information that revision petitioner is carrying Mo.1 white can containing arrack at Chappathodu at about 6 p.m. Along with PW1 the police constable and other police constables PW4 reached the spot and found petitioner carrying MO.1 can. When PW4 proceeded towards revision petitioner, he ran away leaving behind MO.1. PW4 after preparing Ext.P1 seizure mahazar, seized MO.1 can. On verification Mo.1 was found containing arrack. PW4 prepared three samples in three separate bottles and sealed them and also sealed MO.1 can containing the remaining arrack and proceeded to the police station and prepared Ext.P3 FIR and registered the crime. PW5 investigated the case and his successor CRRP 2740/07 2 PW6 laid the charge. Revision petitioner surrendered before the court and was later enlarged on bail. Case was committed to sessions court, Thalassery from where it was made over to Additional Assistant Sessions court, Thalassery. When charge for the offence under Section 55(a) of Abkari Act was framed and read over, petitioner pleaded not guilty. Prosecution examined six witnesses and identified MO.1 and marked Exts.P1 to P5. Though called upon to adduce evidence after hearing under Section 232 of Code of Criminal Procedure, revision petitioner did not adduce any evidence. Learned Additional Sessions Judge thereafter heard the prosecution defence and found the petitioner guilty and convicted and sentenced him for the offence under Section 8(2) of Abkari Act. Learned Sessions Judge confirmed it in Crl.A.435/2005. The conviction and sentence are challenged in this revision. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for revision petitioner argued that there is no legal and CRRP 2740/07 3 reliable evidence to find the petitioner guilty of the offence under Section 55(a) or Section 8(2) of Abkari Act and petitioner was never apprehended by the police and he surrendered before the court only because a case was foisted against him. It was argued that as per Ext.P1 seizure mahazar PW4 reached the spot on getting information and found a person with defective left eye holding MO.1 can and he escaped leaving behind MO.1 can and PW4 admitted that revision petitioner has no defect on his left eye and defective eye is the right eye and therefore petitioner cannot be the person who was carrying MO.1 on 26/6/1999 as alleged by the prosecution. It was also argued that there is no evidence to connect revision petitioner with Mo.1 can and on that sole ground conviction is unsustainable. Learned counsel also pointed out that as per the prosecution case, arrack contained in MO.1 can was seized at 6.10 p.m on 26/6/1999 but it reached the court only on 8/7/1999 and there is no reliable evidence to prove that what was produced before the court is the article which was seized from the spot under Ext.P1 and therefore CRRP 2740/07 4 based on Ext.P5 report of chemical analysis it cannot be found that petitioner was in possession of arrack in contravention of Abkari Act. Learned counsel also argued that even though Section 8(2) of Abakari Act was incorporated under the Act as per Amended Act 16 of 1997 with effect from 3/6/1997 when charge was framed on 18/11/2003, petitioner was charged not for the offence under Section 8(2) but under Section 55(a) of Abkari Act and without alteration of the charge learned Assistant Sessions Judge was not justified in convicting petitioner for the offence under Section 8(2) of the Act and therefore conviction is not sustainable. 4. Though PW2, an independent witness who is the first attesting witness to Ext.P1 seizure mahazar was examined, he turned hostile and did not support the prosecution. Learned Assistant Sessions Judge and learned Sessions Judge relied on the evidence of PW1 and PW4 and Ext.P1 seizure mahazar and held that revision petitioner was in possession of arrack in contravention of the provisions of Abkari Act. As rightly pointed out by the learned counsel appearing for revision petitioner, if CRRP 2740/07 5 Ext.P1 seizure mahazar is to be accepted PW4 received information that revision petitioner is conducting sale of country arrack at Chappathodu and PW4 along with PW1 reached there and found a person with defective left eye holding MO.1 can. When PW4 along with PW1 proceeded towards him, that person leaving behind MO.1 crossed thodu and escaped from the spot. It is admitted by PW4 that revision petitioner is not having defective left eye and it was noted by PW4 immediately after submission of Ext.P3 FIR. Still no report was submitted to the court to the effect that person who was found holding MO.1 can was having defective right eye and not left eye. There is no reliable evidence to hold that it was revision petitioner who was holding MO.1 at Chappathodu at about 6.10 p.m on 26/6/1999, even if the evidence of Pws.1 and 4 that a person was holding Mo.1 can containing arrack at that time and that person ran away from the spot leaving behind MO.1 can is accepted. Though Pws.1 and 4 identified revision petitioner as that person from the witness box, no basis was disclosed by them to fix the identify of the revision petitioner. Therefore, on CRRP 2740/07 6 that sole ground it is to be found that there is no evidence to prove that it was the revision petitioner who was holding Mo.1 can as stated in Ext.P1 seizure mahazar. 5. Added to this, even if Ext.P1 is accepted and evidence of Pws.1 and 4 were believed and one can containing arrack was seized at 6.10 p.m on 26/6/1999 Ext.P3 FIR reached the court on 28/6/1999. But MO.1 can and the samples prepared at the spot were not produced before the court immediately or along with Ext.P3 FIR. It reached the court only on 8/7/1999. Evidence of PW4 is that it was in his custody at the police station. But on the evidence it cannot be found that the article reached before the court is the same article which was seized by PW4. Though PW4 deposed that samples were sealed with the signatures of PW4 and witnesses on the sealed bottle, there is no case that the sample seal was produced before the court. Ext.P5 certificate of chemical analysis does not show that the samples received at the laboratory contained signatures of PW4 or the witnesses, which were allegedly taken by PW4. Ext.P5 only shows that CRRP 2740/07 7 samples were sealed and seal was found tallying with seal forwarded from the court. When there is no case for prosecution that sample seal of the witnesses or PW4 was taken or produced before the court, the seal which was found intact at the laboratory could only be the seal which was affixed by the court at the time of forwarding to the laboratory, pursuant to the forwarding note furnished by the investigating officer. If that be the case, prosecution did not establish that the sample which was produced before the court and examined at the laboratory, based on which Ext.P5 report was furnished, is the same sample which was prepared at the spot. If that be so, based on Ext.P5 it is not possible to find that revision petitioner was possessing arrack in contravention of the provisions of Abkari Act. On that ground also conviction is not sustainable. 6. More over, the charge framed by the court is for the offence under Section 55(a) of Abkari Act. Though learned Assistant Sessions Judge found that, offence is not under Section 55(a) of Abkari Act, even though no charge for the offence under CRRP 2740/07 8 Section 8(2) of Abkari Act was framed, revision petitioner was convicted and sentenced for the offence under Section 8(2). The conviction was upheld by the Sessions court. Ingredients of an offence under Section 55(a) is not same as that of Section 8(2) of Abkari Act. In such circumstances, an offence under Section 8(2) cannot be termed a lesser offence of Section 55(a). If so without a specific charge for the offence under section 8(2), revision petitioner could not have been convicted for the offence under Section 8(2) of Abkari Act and revision petitioner could only be acquitted for the offence under Section 55() of Abkari Act. Even if learned Assistant Sessions Judge found that offence committed is under Section 8(2), not under Section 55(a) charge should have been altered or amended and read over and explained to the accused and his pleading should have been recorded. Without a charge for the offence conviction of revision petitioner for the offence under Section 8 (2) is not sustainable. Therefore conviction of the revision petitioner can only be set aside. 7. Revision petition is allowed. Revision CRRP 2740/07 9 petitioner is found not guilty of the offence under Section 55(a) of Abkari Act. His conviction for the offence under Section 8(2) of Abkari Act is set aside. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.