Nelson vs State Of Kerala on 3 December, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2752 of 2005()


1. NELSON, S/O.ISHAQUE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REP. BY THE
                       ...       Respondent

                For Petitioner  :SRI.SASTHAMANGALAM S. AJITHKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :03/12/2009

 O R D E R
                      P.S.GOPINATHAN, J.
                    -------------------------------
                    Crl.R.P.No.2752 of 2005
                    --------------------------------
          Dated this the 3rd day of December, 2009

                               ORDER

The revision petitioner was prosecuted by the Sub Inspector

of Police, Vithura Police Station in Crime No.131 of 1997 alleging

offences under Sections 55(a) and (h) of the Abkari Act before

the Assistant Sessions Judge, Nedumangad in S.C.No.393 of

1999. The revision petitioner pleaded not guilty. Hence, he was

sent for trial. On the side of the prosecution PWs.1 to 6 were

examined. Exts.P1 to P4 and MOs.1 and 2 were marked. The

revision petitioner took a defence of total denial. On his side,

one witness was examined as DW.1. The learned Assistant

Sessions Judge on appraisal of the evidence arrived a finding of

guilty. Consequently, the revision petitioner was convicted and

sentenced to rigorous imprisonment for three years and a fine of

Rupees one lakh with a default sentence of simple imprisonment

for one year. In Criminal Appeal No.357 of 2001, the conviction

was confirmed. The sentence was reduced to rigorous

imprisonment for one year and a fine of Rupees one lakh.

Assailing the legality, correctness and propriety of the above

conviction and sentence, this revision petition was filed.

Crl.R.P.No.2752 of 2005
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2. Heard either side and perused the records. The

prosecution case is that while PW.6, the Sub Inspector of Police,

Vithura Police Station moving on patrol duty along with PWs.5

and 4, the Head Constable and Police Constable, on 20/7/1997 at

7.30p.m. the revision petitioner was found selling arrack. He was

caught red handed. The contraband was seized on the strength of

Ext.P3 mahazar wherein PWs.2 and 3 are attestors. Returning to

the police station the case was registered by Ext.P2 FIR.

According to the prosecution when sample was sent for chemical

examination, it was reported by Ext.P4 report of the Chemical

Examiner that the sample sent for analysis contained 28.63

percentage by volume of Ethyl Alcohol.

3. PWs.1 to 3, who were examined as independent

witnesses to prove the arrest and seizure, did not support the

prosecution case. They were declared hostile and cross-

examined, but no material was disclosed to support the

prosecution case. PWs.4, 5 and 6 had given evidence regarding

the arrest and seizure of the contraband. The court below

believed their testimony and relying upon Ext.P4, arrived a

finding of guilty. The evidence of PWs.4 and 5 would show that

Crl.R.P.No.2752 of 2005
3

the contraband seized was sealed then and there. They would

assert that no sample was taken at the spot. PW.6 who seized the

contraband also has no case that the sample was taken from the

spot. Ex.P4 would show that a sample containing 180 ml of a

clear and colourless liquid alleged to be arrack was sent for

chemical examination. As to who took the sample, when and

where? Regarding that there is no evidence. Process of sampling

is not proved. The result is that there is material lacking to

connect the liquid seized with Ext.P4 on the basis of which the

courts below found that it is a contraband liquid and entered the

conviction under challenge. Though PWs.4 and 5 had deposed

that they identified the contra band as arrack by smell, PW.6 who

had seized the same has no case that he had smelt the contraband

and satisfied that it is arrack. There is no mention in the evidence

of PWs.4 and 5 that they are experienced to identify arrack by

smell. Such being the materials on record, it could not be

concluded that even the detecting officer had identified the

contra band article as arrack. Since there is no evidence

regarding sampling. Ext.P4 cannot be given reliance to arrive

a conclusion of guilt. I find that the conviction

Crl.R.P.No.2752 of 2005
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under challenge is not sustainable for want of evidence to the

effect that the liquid seized was contraband.

The revision petition is allowed. While setting aside the

conviction and sentence under challenge, the revision petitioner

would stand acquitted and set at liberty.

P.S.GOPINATHAN, JUDGE

Skj.