JOJO JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner is the accused in S.T. No. 1342/1996 on the file of the Judicial Magistrate of the Fist Class, Palai. He was prosecuted by the Sub Inspector of Police in Crime No. 203/1996 accusing offence under Section 55(a) of the Abkari Act, with an allegation that at 8.30. P.M. on 31/5/1996 while PW4, the Circle Inspector of Police, Palai, moving on petrol duty, found the revision petitioner possessing two bottles each containing 750 mls and 5 bottles each containing 375 mls of arrack. The revision petitioner was arrested and the contraband was seized for which Exhibit P1 Seizure Mahazar was prepared. On the basis of Exhibit P1, a case was registered by the Station House Officer. The investigation was taken over by the Sub Inspector of Police who laid the charge sheet. The revision petitioner pleaded not guilty before the trial court. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exhibits P1, P2 and MOs 1 to 3 were marked. On appraisal of the evidence the trial court arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months and a fine of Rs. 1,000/- with a default sentence of simple imprisonment for one month.

(2.) Aggrieved by the above conviction and sentence, he preferred Crl.A. 139/1999. By the impugned judgment dated 19/11/2002, while confirming the conviction and sentence impugned, the appeal was dismissed. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.

(3.) I have heard the learned counsel appearing for the revision petitioner as well as the learned Government Pleader. The impugned judgments were perused. Though it is stated by the prosecution that one of the sample bottles was sent for analysis the report of the chemical examiner was not marked while recording the evidence, for reasons best known to the prosecution. In the above circumstance, there is no material on record to come to a conclusion that the liquid seized was illicit arrack as alleged in the final report. The judgment of the trial court would show that the sample was sent for chemical examination. There is no reason stated in the judgment for not marking the report of the chemical examiner, if any report was obtained. Why it was not marked seems to be a mystery. Whatever it be, in the absence of the report of the Chemical Examiner, it is not known on what basis the courts below concluded that the liquor seized was arrack. Though the non marking of the report was argued before the appellate court, appellate court without giving any reason stated that it might be an omission. It is crucial to note that the appellate court had no mention in the impugned judgment as to how it arrived at a conclusion regarding the nature of the liquid without referring to the analysis report. If it was a case of omission to mark the document, either it should have been marked in appeal or remanded back the case for fresh disposal after marking the document and giving opportunity to impeach the document. But it was not opted. Procedure adopted by the trial court and appellate court are totally erroneous vitiating the conclusion regarding the nature of the liquid seized. Since this being a case more than 16 years old, I find that it is not at all necessary to remit the case back to the trial court. Suffice to state that there is no admissible evidence to come to a conclusion that the liquid seized was any liquor so as to find the revision petitioner guilty for any offence. The benefit arising out of the omission of the prosecution shall go against the prosecution and in favour of the revision petitioner. Since there is no scientific evidence establishing the nature of the liquid, I find that the revision petitioner is entitled to an order of acquittal.