Vargheese s/o Ausep v. Excise Inspector, Badakara Excise Range, Kozhikode Range and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 Crl.Rev.Pet.No. 1139 of 2002(C) ------------------------------ CRA.56/2000 of ADDL. SESSIONS COURT, FAST TRACK COURT-I, KOZHIKODE CC.362/1998 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------------------- VARGHESE, S/O. AUSEP, MALAKHADESAM, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN ## RESPONDENTS: COMPLAINANT/RESPONDENT -------------------------------------------------- 1. EXCISE INSPECTOR, BADAKARA EXCISE RANGE, KOZHIKODE RANGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 1139/2002 : 2 : ORDER ON Crl.M.P. NO.6074/2002 IN CRL.R.P.NO. 1139/2002 ## DISMISSED 29.08.2008 sd/- **V. RAMKUMAR, JUDGE.** ## **V. RAMKUMAR, J.** **...................................... Crl.R.P. No. 1139 of 2002 -C ....................................... Dated this the 29[th] day of August, 2008.** ## **O R D E R** In this revision filed under Section 397 read with Section 401 Cr.P.C., the revision petitioner who was the accused in C.C. No. 362 of 1998 on the file of the Judicial First Class Magistrate, Vadakara for an offence punishable under Section 55(a) of the Abkari Act, challenges the conviction entered and the sentence passed against him concurrently by the courts below for the aforementioned offences. 2. The case of the prosecution can be summarised as follows: On 25.01.1997, at about 1.55 p.m., PW1, the Assistant Excise Inspector, Thamarassery Excise Range on special duty at Azhiyoor Excise Check Post was checking the vehicles. When he checked the stage carriage bus bearing No. KL-8-F.3132 (John Motors), the accused was found sitting on the back seat of the bus carrying a plastic cover on his lap. When the plastic cover was unwrapped, it was found that it contained three bottles of Honey Bee No.1. brandy each containing one litre. On opening CRL.R.P. NO. 1139/2002 :2: one of the bottles and smelling and tasting its contents, PW1 was convinced that it was Indian made foreign liquor. Under the bona fide belief that the accused was found in possession of 3 litres of Indian made foreign liquor, the accused was arrested and the bottles were seized after taking a sample of 180 ml and sealing the same. The remaining bottles along with the sample bottle, the accused and the case records were produced before the Excise Range Officer, Vadakara for further action. PW2, the Excise Inspector, Vadakara Excise Range filed a complaint before the court. 3. Relying on the testimony of PW1 and Ext.P1 Mahazar, Ext.P2 Search list and Ext.P3 Chemical Analysis Report, the trial court found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and sentenced him to simple imprisonment for six months and to pay a fine of Rs.25,000/and on default to pay the fine, to suffer simple imprisonment for six months. On appeal preferred by the revision petitioner as Crl. Appeal No. 56 of 2000, the Additional Sessions Judge as per judgment dated 16.07.2002 dismissed the appeal confirming the CRL.R.P. NO. 1139/2002 :3: conviction entered and the sentence passed. Hence, this revision. 4. I heard the learned counsel appearing for the revision petitioner as well as the learned Public Prosecutor. 5. After a careful re-appraisal of the oral and documentary evidence in the case, I am not inclined to uphold the conviction entered and the sentence passed against the revision petitioner. The occurrence was on 25.01.1997. Even though PW1 would say that the three bottles in question allegedly containing Indian made foreign liquor were on the lap of the accused who was a passenger in the bus in question, PWs 3 and 4 who were the conductor and the owner of the bus would submit that the bottles were not on the lap of the accused but were beneath the rear seat of the bus. PWs 3 and 4 would even say that the accused was the door checker in that bus. No passenger in the bus was examined by the prosecution. If the three bottles were found underneath the rear seat of the bus, it cannot be straight away concluded that the accused was in possession of the three bottles allegedly containing IMFL. CRL.R.P. NO. 1139/2002 :4: 6. The only person who supported the prosecution was the detecting officer namely PW1. The alleged occurrence was on 25.01.1997. PW1 would claim to have taken a sample of 180 ml from one of the three bottles. But, the prosecution did not produce any document to show the date of the actual production of the property before the court. The perusal of the property list available in the court records shows that the property reached in the court only on 03.02.1997. Even assuming that Ext.P1 Mahazar said to have been prepared by PW1, the detecting officer can be looked into to hold that the three bottles were seized from the bus in question and those bottles were in the possession of the accused, the prosecution will have to further show that the contents of the bottle was IMFL, in which case alone the prosecution can succeed in bringing home the guilt of the accused. 7. Except marking Ext.P1 mahazar, Ext.P2 search list and Ext.P3 chemical analysis report, the prosecution did not produce or mark any other document in support of its case. Going by Ext.P1 mahazar, PW1 had taken a sample of 180 ml from one of CRL.R.P. NO. 1139/2002 :5: the three bottles. Going by the records of the trial court, the property including the sample reached the court only on 03.02.1997. There is absolutely no explanation forthcoming from PW1 regarding the delay as also whether the properties until their production before the court on 03.02.1997 were in his personal custody in a tamper proof condition. It is not known as to why even without a requisition or a forwarding note from the Investigating Officer, the trial court forwarded the sample bottle to the chemical examiner, Kozhikode for analysis. Even assuming that there was a request by the Investigating Officer to forward a sample bottle to the Chemical Examiner's Laboratory for analysis, Ext.P3 report of chemical analysis shows that the sample bottle was despatched by the Judicial First Class Magistrate, Vadakara to the Chemical Examiner's Laboratory, Kozhikode as per a covering letter dated 03.02.1997. But the sample reached the Chemical Examiner's Laboratory only on 07.06.1997. This inordinate delay of more than four months is also not explained. CRL.R.P. NO. 1139/2002 :6: 8. There is no link evidence to establish that it was the very same sample bottle into which the sample was drawn on 25.01.1997 that reached the court on 03.02.1997 which eventually found its way into the hands of the chemical examiner on 07.06.1997. There is no proceedings kept by the trial court to indicate as to who dealt with the sample and who forwarded the same to the chemical examiner. The thondi section clerk who is the member of the staff who deals with the samples and who despatches the sample to the chemical examiner, has not been examined. In the absence of any material to indicate as to whether the Magistrate had ordered despatch of the sample to the chemical examiner and in the absence of any material to suggest as to who packed and sealed the sample and despatched the same to the chemical examiner in a fool proof condition, it cannot be concluded that the sample which reached the chemical examiner four months after its alleged despatch was the very same sample which was allegedly drawn from the three bottles stated to have been abandoned by the revision petitioner. The prosecution can bring home the guilt of the accused only if it is CRL.R.P. NO. 1139/2002 :7: proved that the sample which was allegedly drawn from the contraband liquor seized from the accused was the very same sample which eventually reached the hands of the chemical examiner after passing several hands. (See _**Valsala v. State of Kerala**_ (AIR 1993 (2 KLT 550). The conviction entered and the sentence passed against the revision petitioner overlooking the above vital aspects of the matter cannot be sustained. Hence, without going into the question as to whether Section 55(a) of the Abkari Act is attracted in the light of the decision of this Court in ( _**Surendran v. Excise Inspector**_ 2004(1) KLT 404), the conviction entered and the sentence passed against the revision petitioner are set aside and the revision petitioner is acquitted of the offence punishable under Section 55(a) of the Abkari Act. He shall be set at liberty. His bail bonds are cancelled. This revision is allowed as above. Dated this the 29[th] day of August, 2008. ## **V.RAMKUMAR, JUDGE.** rv CRL.R.P. NO. 1139/2002 :8: V. RAMKUMAR, J **------------------------------------** CRL. R.P. No. 1139 of 2002 ---------------------------------------- 1[st ] day of September, 2008 ORDER CRL.R.P. NO. 1139/2002 :9: