High Court Kerala High Court

Anilkumar.R. vs State Of Kerala on 7 August, 2009

Kerala High Court
Anilkumar.R. vs State Of Kerala on 7 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1150 of 2003()


1. ANILKUMAR.R., S/O. LATE RAJU,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :07/08/2009

 O R D E R
                     M.N. KRISHNAN, J.
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               Crl. Appeal NO. 1150 OF 2003
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         Dated this the 7th 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,

Ernakulam in S.C.60/02. Accused was charge sheeted for

offence u/s 55 (a) (i) of the Abkari Act and was convicted

thereunder and sentenced to undergo rigorous imprisonment

for a period of one year and 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 convict the

accused u/s 55(a) of the Abkari Act?

(2) Is there anything to interfere with the decision

rendered by the Court below?

Crl. Appeal NO. 1150 OF 2003
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Points 1 and 2:

3. Heard the learned counsel for the appellant as well

as the Prosecutor. The learned counsel for the appellant had

pointed out and brought before me the fundamental mistake

that has crept in, which if accepted should go to the benefit of

the accused. It is the case of the prosecution that the accused

was found in possession of 26 bottles of John’s Old Marshell

Brandy and 28 bottles of whisky and he was apprehended,

examined and the articles namely the liquor were seized from

the house of the accused. Now the learned counsel for the

appellant would contend before me that the chemical

examiner’s report, Ext.P7 would reveal that what is examined

by the chemical examiner is a liquid of 250 ml which is a clear

and coloured liquid. A reading of the seizure mahazar would

reveal that the sample taken is from the bottles which were

there in the house itself. There is no whisper of transferring

the liquid from its original container to another bottle for the

purpose of sampling and then sealing. In the paragraphs in

the seizure mahazar it is also seen that two bottles were

opened, tasted and they were sealed after tying it with a cloth

Crl. Appeal NO. 1150 OF 2003
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and twine and then sealed. So prima facie it appears that the

sample is also the original liquid which is to be taken. Now

this gets support from the occurrence report. In the

occurrence report it is stated that 27+25 full bottles were

taken and one bottle of brandy and one bottle of whisky were

taken as sample of two bottles. So it will be (25+27+2=54).

So prima facie from the seizure mahazar and the occurrence

report no sample is separately taken at all.

4. Now we refer to the forwarding note. The

forwarding note would reveal that what is seen as sample are

(1) Sample of 250 ml original Choice Fine whisky in 375 ml

bottle labeled and sealed. (2) Sample of 250 ml John’s Old

Marshell Brandy in 375 ml bottle labeled and sealed. It is

again reiterated that both these samples are contained in 375

ml bottles. So what is sent for chemical analysis is the liquid

which is taken in a bottle having the capacity of 375 ml.

There is no case for the prosecution anywhere that from the

place where it is alleged to be seized liquor had been

transferred to a 375 ml bottle so as to take it as a sample.

But on the contra what will appear is that from the total

Crl. Appeal NO. 1150 OF 2003
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number of 54 bottles of whisky, one bottle of brandy were

opened and a small quantity was taken for the purpose of

tasting and the balance was tied with a cloth, then sealed. So

it is the original of the bottle seized that is taken as sample as

per the materials. But what is sent for chemical analysis is a

bottle of 375 ml capacity. To crown all these things when we

go to the chemical analyst’s report the liquid that has sent for

chemical analysis is only 250 ml. Suppose a negligible

quantity from a 750 ml bottle is taken for the purpose of

testing it by taste and smell then necessarily 750 ml bottle

should be left with at least 700 or 650 ml of liquid in those

bottles. But the chemical analysis report reveals that only 250

ml liquid was received for the purpose of examination. So it

has to be stated that all is not well with the case and the

prosecution has not succeeded in proving the factum that (1)

the liquid which was found in possession of the accused was

taken as sample (2) that it was that sample that was sent

before Court and ultimately it is also not proved that the said

sample seized was sent for chemical analysis. When these

things which have to be a chain, falls, necessarily the Court

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has to hold that there is no evidence to prove that the accused

was in possession of illicit liquor or liquor without permit as

contemplated by law. A Court of law cannot and is not

expected to find out what is the liquid from the very mere

sight. The Court has to rely upon scientific materials for the

said purpose. As stated by me there is a total confusion and

necessarily the benefit has to go to the accused. So the

accused is entitled to an acquittal on the basis of the benefit of

doubt. Therefore the appeal is allowed and the conviction and

sentence passed by the learned Sessions Judge u/s 55(a) of

the Abkari Act is set aside and the accused is found not guilty

and acquitted and set at liberty.

Since the matter has ended in acquittal if any amount is

in Court deposit by way of the direction of this Court for the

purpose of suspending the sentence necessarily it has to be

reimbursed to the accused on proper application.

M.N. KRISHNAN, JUDGE.

ul/-