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?
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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
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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
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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/-