IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1390 of 2003()
1. SOLAMEN, SON OF DHAVEED,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.B.RAJEEV KOYICKAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/07/2010
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.R.P.No.1390 OF 2003
====================
Dated this the 23rd day of July, 2010.
O R D E R
Revision petitioner, the accused in C.C.No.643 of 1996 on
the file of Judicial First Class Magistrate Court-I, Cherthala, was
convicted and sentenced for the offence under Section 55 (a) of
Abkari Act. Though petitioner challenged the conviction and
sentence before Sessions Court, Alapuzha in Criminal Appeal
No.100 of 2001, the learned Sessions Judge, on re-appreciation
of evidence, confirmed the conviction and sentence and
dismissed the appeal. It is challenged in the revision.
2. When the revision was taken up, there was no
representation for the counsel appearing for appellant. The
learned Public Prosecutor was heard.
3. Prosecution case is that PW5, the Sub Inspector of Police,
while on patrol duty, got information that illicit arrack is
manufactured in the house of Solaman (the petitioner). He
along with PW4, the Head Constable, and police party reached
House No.10/353 of Thuravoor Panchayath where petitioner is
residing with his family. Finding the police party, petitioner
Crl.R.P.No.1390 OF 2003 2
ran away. When PW5 entered the house, it was found that on
the north eastern corner of the house 750 ml of illicit liquor was
kept for the purpose of sale. In the presence of PWs. 1 and 2, it
was seized and Crime No. 115 of 1994 for offence under Section
55(a) of Kerala Abkari Act was registered at 8.15 PM on 7.6.1994.
PW5 sent MO1, the illicit arrack seized along with Ext.P1, to
Excise Office. PW3, the then Excise Inspector, on receipt of
Ext.P3, conducted investigation and prepared a crime occurrence
report and thereafter laid the charge before the learned
Magistrate which was taken cognizance.
4. Petitioner pleaded not guilty. Prosecution examined PWs.
1 to 5 and marked Exts. P1 to P3 and identified MO1. The learned
Magistrate on the evidence found the petitioner guilty. He was
convicted and sentenced to simple imprisonment for 6 months
and a fine of Rs.5,000/- and in default, simple imprisonment for 6
months for offence under Section 55(a) of Abkari Act. The
learned Sessions Judge, in criminal appeal, on re-appreciation of
evidence, accepted the evidence of PWs. 1 and 2 with the
evidence of PWs. 4 and 5 and held that MO1 was seized from the
house of petitioner and finding PW5 and police party, petitioner
ran away and, therefore, could not be arrested. Based on the
Crl.R.P.No.1390 OF 2003 3
evidence of PWs. 4 and 5 that on smelling and tasting the liquid
they were satisfied that it is illicit arrack and based on Ext.P2
report of the chemical analysis, it was held that it is illicit arrack.
Petitioner was convicted.
5. The evidence of PW5 only shows that he seized a 750 ml
bottle from house No.10 of 353 of Thuravoor Panchayath and
also prepared Ext.P1 mahazar and on return back to the police
station under Ext.P3 FIR, registered the case and on the next day,
FIR along with the seized bottle was sent to the Excise Office.
PW5 did not produce MO1 before the court. In cross examination,
PW5 deposed that he had sent the seized bottle of illicit arrack
to the Excise Office. PW3, the Excise Inspector, deposed that he
registered a crime and sent an occurrence report, which is not
seen marked, and thereafter investigated the case. PW3 has no
case that he produced the seized article before the court. In
cross examination, PW3 was questioned who produced MO1
before the court. He said he cannot say. Thereafter, he added
that it was produced by PW5, the Sub Inspector. The evidence of
PW5 contradicted with evidence of PW3. Whatever it be, there
is no evidence as to when MO1 was produced in court and who
produced MO1. A property list is seen among records which does
Crl.R.P.No.1390 OF 2003 4
not show the date of production and when it was produced and
when it was prepared or when it was submitted before the court.
Though there is court seal, that also did not show the date.
Therefore, based on that property list also, it is not possible to
find when exactly MO1 reached the court. From the records it
can be seen that a requisition form signed by PW5 was produced
before the court to send the sample to the Chemical Laboratory
for chemical analysis. Column No.4 therein is the list of articles
forwarded. The entry is “one sealed bottle containing 180 ml of
sample of ID in crime No. 87 of 1994 of Kuthiyathode range”.
What is produced as per the property list is 750 ml of illicit arrack
in one bottle. The requisition forum does not contain any request
to the court to prepare sample. The property list contains entry
indicating that as per the order of the Junior Superintendent that
the property is entered as TR 85 /96. If that be so, it can only be
found that MO1 reached the court in 1996 though it was seized
on 7.6.1994.
6. Ext.P1 seizure mahazar does not show that the bottle
was sealed at the time of seizure. The evidence of PW5 also does
not show that PW5 sealed the bottle when it was seized under
Ext.P1, or immediately thereafter. Therefore, even if the
Crl.R.P.No.1390 OF 2003 5
evidence of PW5 is accepted as such, it would only show that a
7.50 ml bottle was seized from house No.10/353 and he sent it to
the Excise Department on 8.6.1994. Though the property list is
signed by PW1 indicating that he produced the seized bottle
before the court, evidence of PW3 is that he did not produce it.
There is no evidence as to who was in custody of the article from
8.6.1994 till it was produced in 1996. In such circumstances,
when there is no evidence that the bottle was sealed and there is
no evidence as to who had taken the sample which was
examined in laboratory to forward Ext.P2 report, based on Ext.P2
report, it cannot be found that MO1 contains illicit arrack. Though
PWs. 4 and 5 deposed by tasting and smelling that it was illicit
arrack, based on that evidence alone, it is not possible to hold
that it was illicit arrack. If that be so, conviction of the petitioner
can only be set aside finding that prosecution did not establish
the petitioner committed an offence under Section 55(a) of Abkari
Act. Even if it is accepted, the offence will not come under Section
55(a) in view of the decisions of the Division Bench of this Court
in Surendran V. Excise Inspector (2004 (1) KLT 404) and
Mohanan V. State of Kerala (2004 (1) KLT 845). In such
circumstances, conviction is to be set aside. Revision is allowed.
Crl.R.P.No.1390 OF 2003 6
Conviction and sentence of the petitioner in CC.No.643 of 1986
by Judicial First Class Magistrate-I, Cherthala is set aside. He is
found not guilty of the offence. He is acquitted.
M.SASIDHARAN NAMBIAR, JUDGE.
mns