IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3059 of 2003()
1. SURENDRAN
... Petitioner
Vs
1. EXCISE INSPECTOR
... Respondent
For Petitioner :SRI.P.K.MUHAMMED
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/07/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.R.P.No.3059 of 2003
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ORDER
Petitioner, the accused in C.C.No.488/1996 on
the file of Judicial First Class Magistrate’s
Court-II, Attingal, was convicted and sentenced for
the offence under Section 58 of Abkari Act.
Petitioner challenged the conviction and sentence
before Sessions Court, Thiruvananthapuram in Crl.A.
No.393/1998. Learned Sessions Judge, on re-
appreciation of evidence, confirmed the conviction
and sentence and dismissed the appeal. It is
challenged in the revision.
2. Learned counsel appearing for the petitioner
and learned Public Prosecutor were heard.
3. Learned counsel submitted that as per the
prosecution case, MO1 can, containing illicit
arrack, was seized on 29.5.1996 and Exhibit P1
mahazar, by which MO1 can was seized, does not
disclose that any sample was taken and Exhibit P3
CRRP 3059/03 2
certificate of chemical analysis shows that what
was received in the Laboratory is a bottle
containing 180 ml. of clear and colourless liquid
and there is no evidence as to how a bottle of 180
ml. was prepared. It was argued that though Exhibit
P1 mahazar shows that the seized can was sealed,
neither the mahazar nor the evidence of PW1 nor PW3
show that any signature of the witness or the
petitioner was obtained on the seal and in such
circumstances, the delay in reaching the contraband
article before the court is fatal. It was pointed
out that there is no evidence as to when MO1 can
reached the court and in such circumstances, based
on Exhibit P3 report, petitioner cannot be
convicted and he is to be acquitted.
4. Learned Public Prosecutor submitted that
evidence of PWs 1, 3 and 4 with Exhibit P1 mahazar
establish that MO1 can was in the possession of the
petitioner and Exhibit P3 report establishes that
it was illicit arrack and therefore, the conviction
CRRP 3059/03 3
is legal.
5. Exhibit P1 with the evidence of PWs 1 and 3
show that petitioner was arrested and was released
on bail. MO1 can was seized on 29.5.1996. Exhibit
P1 mahazar does not show that any sample was
prepared before MO1 can was sealed. Evidence show
that there was no case either for PW1 or PW3 or PW4
that any sample was prepared from MO1 can at any
point of time. Exhibit P3 report shows that what
was received in the Laboratory was one sealed
bottle containing 180 ml. of clear and colourless
liquid, allegedly to be arrack involved in Crime
No.60/1996 of Kazhakkoottam Excise Range. It shows
that the seal was intact and tally with the seal
provided. It was not shown what was the seal
forwarded to the Laboratory.
6. There is force in the submission of the
learned counsel appearing for the petitioner that
in the absence of any evidence regarding
preparation of the sample and forwarding the same
CRRP 3059/03 4
to the Laboratory, based on Exhibit P3 report, it
cannot be said that MO1 can contained illicit
arrack. True, Exhibit P3 report shows that the
sample examined at the Laboratory establishes that
it contained 26.85% by volume of ethyl alcohol. But
the question is whether that sample was prepared
out of the liquid found in MO1 can after its
seizure. Exhibit P1 mahazar shows that no sample
was prepared and instead, the can as such was
sealed. Evidence of PWs 1, 3 and 4 do not show who
produced MO1 can before the court or when it was
produced. On verification of the records, it is
clear that MO1 can was produced before the court
along with the charge sheet dated 18.6.1996. From
the court seal, it can be presumed that the charge
sheet, Exhibit P1 mahazar as well as MO1 can
reached the court on 18.6.1996. There is no
evidence as to who has been in custody of the
seized MO1 can from 29.5.1996, the date of its
seizure, till it reached the court on 18.6.1996.
CRRP 3059/03 5
There is also no evidence to show whether it was
kept under safe custody during that period. When
the signature of the attesting witness or the
petitioner was not obtained on the seal, even
though when MO1 can reached the court there was
seal, it cannot be said that it was the same bottle
containing the same liquid, which was seized from
the petitioner on 29.5.1996. In any way,
possibility of tampering cannot be ruled out.
Though, along with the final report a request made
by PW4 to forward the sample for chemical analysis
was also seen, it was not disclosed in evidence as
to who prepared the sample and how it was prepared.
In the absence of any evidence, petitioner is
definitely entitled to contend that Exhibit P3
report is not a report prepared on examination of
the sample taken from MO1 can. If that be so, on
that short ground, conviction is to be set aside.
Revision is allowed. Conviction of the
petitioner for the offence under Section 58 of
CRRP 3059/03 6
Abkari Act in C.C.No.488/1996, as confirmed in
Crl.A.No.393/1998, is set aside. Petitioner is
found not guilty of the offence. He is acquitted.
The bail bond executed by him stands cancelled.
29th July, 2010 (M.Sasidharan Nambiar, Judge)
tkv