# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942**
**Crl.Rev.Pet.No.2181 OF 2013**
**AGAINST THE JUDGMENT IN CRA 128/2010 DATED 14-08-2013 OF ADDITIONAL SESSIONS COURT ,THALASSERY**
**AGAINST THE JUDGMENT IN SC 1056/2004 OF ASSISTANT SESSIONS COURT, PAYYANNUR**
## **REVISION PETITIONER/APPELLANT/ACCUSED:**
**CHATHIYADAN GANGADHARAN AGED 50 YEARS**
**S/O.PUTHIYAVEETTIL AMBU,RAMANTHALI,CHITTADI DESOM,P.O RAMANTHALI**
## **BY ADV. SRI.MAHESH V RAMAKRISHNAN**
## **RESPONDENT/RESPONDENT/STATE:**
**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA**
## **SRI SANTHOSH PETER-SR PP**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.06.2020, THE COURT ON 01.07.2020 PASSED THE FOLLOWING:**
**Crl.Rev.Pet.No.2181 OF 2013**
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## **R. NARAYANA PISHARADI, J**
**-----------------** -----------------------------------
**Crl.R.P. No. 2181 of 2013**
----------------------------------------------------Dated this the 1[st] day of July, 2020
## **O R D E R**
The revision petitioner is the accused in the case S.C No.1056/2004 on the file of the Court of the Assistant Sessions Judge, Payyannur.
2. The prosecution case is that, on 09.03.2002, at about 09:30 hours, PW1 Excise Circle Inspector found the petitioner/accused at the road near the Bhagavathy Temple at the place Chittadi in Taliparamba Taluk with two plastic pots, each containing 10 litres of wash, intended for manufacture of arrack.
3. The trial court framed charge against the accused for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried.
4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P10 documents and MO1 and MO2 material objects. DW1 was examined on the side of the accused.
5. The trial court found the accused guilty of the offence
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punishable under Section 55(g) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months.
6. The petitioner filed Crl.A.No. 128/2010 before the Court of Session, Thalassery, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner but modified the substantive sentence to rigorous imprisonment for a period of one year. The appellate court confirmed the sentence of fine imposed on the petitioner by the trial court.
7. Aggrieved by the concurrent verdicts of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition.
8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
9. Learned counsel for the petitioner has contended that it is a false case foisted upon the petitioner by the excise party and that the evidence of DW1 would prove that fact. Learned counsel has also
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contended that there is no satisfactory evidence adduced by the prosecution to prove any connection between the petitioner and MO1 and MO2 plastic pots produced before the court.
10. PW1 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail.
11. PW2 is an independent witness examined by the prosecution to prove the occurrence. He has deposed that he was present when the excise party arrested the accused and that he signed the arrest memo and the seizure mahazar prepared by the excise party. PW2 has deposed on cross-examination that, when he signed the documents, the plastic pots were in the property in front of the temple there. PW2 has not given any evidence that he saw the excise party seizing the plastic pots containing any liquid from the possession of the accused.
12. Ext.P9 is the chemical examination report received in respect of the samples sent for analysis. It shows that the two samples sent for analysis contained 5.49% and 7.05% by volume of ethyl alcohol.
13. The evidence of DW1 is that he saw the excise party taking aluminium vessels and a can from the bush near the temple. The prosecution has no case that the accused possessed aluminium
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vessels or can containing wash. Therefore, the evidence of DW1 would not prove that the case is one foisted upon the accused by the excise party.
14. PW1 has given evidence that he destroyed the wash contained in the plastic pots at the spot of the occurrence itself after taking samples and thereafter he prepared Ext.P2 mahazar. However, Ext.P2 mahazar does not contain any recital that the wash was destroyed at the spot of the occurrence.
15. PW1 has given evidence that he sealed the sample bottles and affixed label, bearing the signature of himself and the witnesses and the accused, on them. Ext.P2 seizure mahazar also contains a recital to that effect. According to PW1, he had produced the articles and the accused and the records at the Payyannur Excise Range Office. PW3 Preventive Officer was in charge of the Excise Inspector of Payyannur Excise Range. He has deposed that the accused and the articles and the records were produced before him and he registered Ext.P4 crime and occurrence report. The description of the properties given in Ext.P4 crime and occurrence report does not show that the sample bottles were sealed or that there was any label bearing the signature of the accused affixed on the sample bottles.
16. Ext.P5 is the property list prepared by PW3 for producing
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the material objects before the court. The description of the sample bottles given in Ext.P5 property list also does not show that there was any label bearing the signature of the accused on them. But, it shows that the sample bottles were sealed. This indicates that the sample bottles, which had no seal on them at the time of producing them before PW3, were sealed at the excise office before they were produced in the court.
17. In the aforesaid circumstances, there is no assurance that the very same samples allegedly drawn by PW1 from MO1 and MO2 plastic pots at the spot of the occurrence had been produced before PW3 and that the very same samples were produced by PW3 before the court.
18. Ext.P6 is the copy of the forwarding note prepared by PW3 for sending the samples for chemical analysis. The description of the sample bottles given in Ext.P6 forwarding note also does not show that there was any label bearing the signature of the accused on them. Moreover, the specimen of the seal used for sealing the sample bottles is not seen affixed on Ext.P6 forwarding note.
19. In the aforesaid circumstances, there is also no assurance that the very same samples allegedly drawn by PW1 from the liquid contained in MO1 and MO2 plastic pots were forwarded for analysis
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and the very same samples were tested there and that Ext.P9 chemical analysis report relates to those samples.
## 20. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019**
## **SC 3569** , the Supreme Court has held as follows:
"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related".
21. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused.
22. The trial court as well as the appellate court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the petitioner/accused cannot be sustained. He is entitled to be acquitted.
23. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 55(g) of
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the Abkari Act are set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him.
**Sd/-R. NARAYANA PISHARADI JUDGE**
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