SIVARAJAN vs STATE OF KERALA

The revision petitioner herein is the accused in S.C 80/2000 of the Court of Session, Alappuzha. He faced prosecution before the learned Additional Assistant Sessions Judge, Alappuzha under Section 55 (a) of the Kerala Abkari Act ("the Act" for short) on the allegation that at about 10.30 a.m on 11.01.1999, he was found possessing 1.5 litres of arrack contained in a plastic bottle.

The offence was detected by a Preventive Officer of the Kayamkulam Excise Range. He arrested the accused and seized the arrack bottle as per a mahazar. On the basis of the arrest and seizure, the crime and occurrence report was registered by the Excise Inspector. He investigated the case and submitted final report in court. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Section 55

(a) of the Act. Instead of framing charge under Section 8

(2) of the Act, charge was wrongly framed by the trial court

under Section 55 (a) of the Act.

The prosecution examined five witnesses in the trial court, and proved Exts.P1 to P5 documents. The MO1 and MO2 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. In defence, he examined a witness as DW1.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of 1 lakh by judgment dated 11.4.2002. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Alappuzha with Crl.A 104/2002. In appeal, the learned Additional Sessions Judge,(Adhoc-II), Alappuzha confirmed the conviction and sentence, and accordingly dismissed the appeal.

When this revision petition came up for hearing, this Court noticed some infirmities, the benefit of which must necessarily go to the accused.

PW5 is the Excise Inspector, who registered the crime and occurrence report and also investigated the case.

He claims to have submitted final report in court. On a perusal of the final report in this case, I find that it is only a draft final report approved by the learned Public Prosecutor.

The draft being approved by the Law Officer, the Excise Inspector should have submitted a proper and fair final report in court. Such a final report is not seen in the files.

In short, this is a prosecution without a final report as required under the law. On this ground itself, the case must collapse.

The detection was made by PW1 on 11.1.1999, but the properties were produced in court only on

13.1.1999. When asked about this, the Excise Inspector stated that on 11.1.1999 itself, he had produced the properties in court and the properties were probably in the custody of the court till 13.1.1999. This cannot be accepted because the property list shows that the properties were produced in court only on 13.1.1999.

Yet another curious aspect is that there is nothing to identify the sample produced in this case. The copy of the forwarding note contains the specimen seal

"K.A" affixed on the sample. PW1 who detected the offence is one Karunakaran Nair. His evidence is that he had affixed his personal seal on the sample, but he does not say or explain what that seal is. The seal "K.A" will not tally with the name and descriptions of the Preventive Officer Karunakaran Nair. It is not known what seal was actually affixed on the sample bottle. This is not seen explained by PW1 or PW2 or even PW5. In short, there is some confusion regarding the identity of the sample produced in court. PW5 says that the properties were not in the custody of any Excise official till 13.1.1999. If so, it requires explanation, or in whose custody the properties were till 13.1.1999. The forwarding note also does not contain the name of the Excise Guard deputed to take the sample to the laboratory.

This Court has settled on this aspect that the forwarding note must contain the specimen of the seal affixed on the sample and also the name of the Constable or Excise Guard deputed to take the sample to the laboratory. I find that on these grounds also, the accused is entitled for acquittal.

In the result, this petition is allowed. The revision petitioner is found not guilty of the offence alleged against him under the Kerala Abkari Act and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him in SC 80/2000 of the court below, and confirmed in appeal, will stand set aside, and the revision petitioner will stand released from prosecution.