IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 536 of 2001()
1. B.K.BUDHA NAIK
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.M.SASINDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/10/2008
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
Crl.R.P. No.536 of 2001
--------------------------------------
Dated this the 7th day of October, 2008.
ORDER
Revision petitioner stands convicted for offence punishable under
Section 58 of the Abkari Act (hereinafter referred as `the Act’) for alleged
possession of about three litres of illicit arrack on 13.10.1995 at about 10.30 a.m.
He was sentenced to undergo simple imprisonment for three months and to pay
fine of Rs.15,000/-. He preferred appeal but conviction and sentence were
confirmed. Hence, this revision.
2. Revision petitioner and counsel remained absent. There was no
representation. Heard Public Prosecutor.
3. PW2, Circle Inspector of Excise and PW1, Preventive Officer who
is said to have accompanied PW2 gave evidence that on 13.10.1995 at about
10.30 a.m. while themselves and party came near the house of revision
petitioner, the latter was found coming against them carrying a plastic can
(identified as MO1) PW2 collected sample from the content which was found to
be arrack. Material objects were seized as per Ext.P1. Revision petitioner was
arrested at the spot but released on bail. Ext.P3 is the crime and occurrence
report prepared by PW2. PWs 3 and 4 are attestors to Ext.P1 but they refused
to support prosecution though admitted signing Ext.P1. It is contended that
evidence let in by the prosecution is not sufficient to warrant conviction of
Crl.R.P.No.536/2001
2
revision petitioner.
4. I have gone through the evidence. Though the case of PW2 was
that revision petitioner was arrested at spot and released on bail, there is no
record to substantiate the release on bail. Moreover, PW2 was not sure whether
the labels affixed on the can and sample bottle contained the name of revision
petitioner. According to PWs 1 and 2, they travelled to the place of occurrence
in a taxi jeep. PW2 stated that there will be no record to show that on the
relevant day, he had been to the place of incident. There is also no record to
show that they had paid taxi fare for using the taxi jeep. That version of PW2
appears to be quite strange. Moreover, it is seen from Exts.P1 and P3, mahazar
and crime and occurrence report though allegedly prepared on 13.10.1995, it
was produced before the learned magistrate only on 14.10.1995. Material
objects were also produced only on 14.10.1995. There is no explanation why at
least Ext.P3, crime and occurrence report was not produced before the learned
magistrate immediately after alleged incident on 13.10.1995. I checked up and
found that 14.10.1995 was a second Saturday and 15.10.1995 was a Sunday
and therefore, holidays. Even assuming so, that did not absolve PW2 from his
obligation to produce crime and occurrence report before the magistrate
concerned immediately after incident, at least by the next day which also has
not been done. I stated that according to PW2, no record will show that he had
been to the place of occurrence at the relevant time and that there is not even a
receipt for payment of taxi fare for the taxi jeep allegedly used by PWs 1 and 2
to go to the place of occurrence. It is not safe to place reliance on evidence of
Crl.R.P.No.536/2001
3
PWs 1 and 2 alone to sustain conviction of revision petitioner. Conviction and
sentence are therefore, liable to be set aside and I do so.
Resultantly, Revision Petition is allowed. Conviction and sentence
imposed on revision petitioner are set aside and he is acquitted of the charges
made against him. Bail bond is cancelled.
Crl.M.P.No.2572 of 2001 shall stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
Crl.R.P.No.536/2001
4
Thomas P.Joseph, J.
Crl.R.P.No.536 of 2001
ORDER
7th October, 2008