JOHNY vs STATE OF KERALA

The revision petitioner herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (for short" the Act") in S.C 132/2003 of the Court of Session, Ernakulam. He faced trial before the learned Assistant Sessions Judge, Muvattupuzha on the allegation that at about 7.15 p.m on 4.2.2000, he was found possessing 1.5 litres of arrack in a plastic bottle. The offence was detected by a Preventive Officer of the Kothamangalam Excise Range. On the basis of the said detection, the Excise Inspector of the Range registered the crime and occurrence report. Another Excise Inspector took over investigation, and submitted final report in court, after investigation.

The accused pleaded not guilty to the charge framed against him in the trial court under Section 8(2) of the Act. The prosecution examined five witnesses in the trial court, and proved Exts.P1 to P11 documents. The MO1 bottle was also identified during trial by the detecting officer. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for one year, and to pay a fine of 1 lakh by judgment dated 18.1.2006. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Ernakulam with Crl.A 155/2006. In appeal, the learned Additional Sessions Judge (Adhoc)- II, Ernakulam confirmed the conviction, but reduced the sentence. The substantive sentence was accordingly reduced to simple imprisonment for six months and the fine sentence was maintained. Aggrieved by the said judgment of appeal dated 4.1.2006, the accused has come up in revision challenging the legality and propriety of the conviction and sentence.

PW3 is the Preventive Officer who detected the offence. PW1 and PW2 examined as independent witnesses turned hostile. PW4 is the Excise Inspector who registered the crime and occurrence report and PW5 is the Excise Inspector who investigated the case and submitted final

report in court. Ext.P10 is the copy of the forwarding note submitted by the Excise Inspector. This Court has settled the legal position that the copy of the forwarding note must be produced in court and proved in evidence, and it must contain the specimen of the seal affixed on the sample.

Without the specimen, the sample produced in court cannot be identified. The forwarding note does not contain the specimen of the seal affixed on the sample bottle by PW3.

The detection mahazar also does not show what seal was in fact affixed by him on the properties. It is not known how the sample and the other bottle could be identified during the proceedings without the specimen of the seal. PW3 stated in evidence that he had not affixed any label on the bottle seized from the hands of the accused. The important point raised by the accused is that there is nothing satisfactory to identify the sample and the other bottle produced in court. On these aspects, the evidence given by the prosecution is not satisfactory. The MO1 bottle does not carry any label containing the signature or the thump impression of the accused. It is necessary to identify the property as the one seized from the hands of the accused.

The forwarding note does not contain even the name of the

Excise Guard deputed to take the sample to the laboratory for examination. On this aspect also, this Court has settled that it must contain the name of the Constable or the Excise Guard deputed to take the sample to the laboratory. Thus, I find that the prosecution has not produced the necessary materials to identify the sample bottle and also the other bottle containing liquor allegedly seized from the hands of the accused. On these grounds, the accused is entitled for acquittal.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 8(2) of the Act and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him in SC 132/2003 of the court below and confirmed in appeal will stand set aside and the revision petitioner will stand released from prosecution.