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Judgment
The revision petitioner herein is the accused in S.C.
22/02 of the Court of Session, Kozhikode. He faced prosecution before the First Additional Assistant Sessions Judge, Kozhikode under Section 55(a) of the Kerala Abkari Act (for short'' the Act"), on the allegation that at about 6.10 p.m on 31.10.1999, he was found possessing 1.5 litres of arrack in a plastic can of 2.5 litres capacity. The offence was detected by a Preventive Officer of the Kunnamangalam Excise Range. He arrested the accused on the spot, and seized the plastic can containing arrack as per a mahazar. On the basis of the seizure made by the Preventive Officer, the Excise Inspector registered the crime and occurrence report, and investigated the case. Another Excise Inspector submitted final report in court.
The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against
him. The prosecution examined six witnesses in the trial court and proved Exts. P1 to P5 documents. The MO1
plastic can was also identified during trial. The accused did not adduce any evidence in defence. However, he denied the incriminating circumstances when examined under Section 313 Cr.P.C.
On an appreciation of the evidence, the trial court found the accused guilty. On conviction he was sentenced to undergo simple imprisonment for four years and to pay a fine of 1 lakh by judgment dated 28.6.2003. Aggrieved by the judgment of conviction, the accused preferred appeal before the Court of Session as Crl.A.361/2003. In appeal, the learned Sessions Judge confirmed the conviction and sentence, and accordingly dismissed the appeal by judgment dated 20.1.2005. Now the accused is before this court in revision.
The short question for consideration is whether there is any illegality or infirmity in the prosecution case for interference by this Court in revision.
Of the six witnesses examined in the trial court, PW2 is the Preventive Officer who detected the offence and PW1 is the Excise Guard who assisted the Preventive Officer
in the process of detection. PW5 is the Excise Inspector, who registered the crime and occurrence report and PW6 is the Excise Inspector who submitted final report in court. Of course, I find that the offence was detected by a competent officer, the crime and occurrence report was also registered by a competent officer and investigation was also made by a competent officer. But as regards the seal affixed on the sample or the question of identification of the sample and the can produced in court, I find something for interference.
The definite evidence given by PW1 is that the personal seal "''Vasu" was affixed on the sample by the Preventive Officer at the spot of detection. But the Ext.P4 copy of forwarding note does not contain such a seal. The learned trial Judge noticed during trial that the MO1 plastic can does not bear any label now. It is not known what happened to the label affixed thereon by the Preventive Officer. Without any label or other description, the property cannot be identified. It is not known how PW1 and PW2 identified the MO1 plastic can as the can seized from the hands of the accused. Ext.P4 forwarding note will show that the sample forwarded for
analysis at the laboratory is some other sample bearing the seal "K.V"'' and not "Vasu". I find that there is nothing to identify the property involved in this case or the sample produced in court for analysis. On this ground itself, the accused is entitled for acquittal.
In the result, this petition is allowed. The revision petitioner is found not guilty of the offence under Section 55
(a) of the Kerala Abkari Act and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him in SC 22/2002 of the court below and confirmed in appeal will stand set aside, and the revision petitioner will stand released from prosecution.