NALINAKSHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Revision petitioner was prosecuted by the Excise Inspector, Nedumangad Range in Crime No. 84/1997, before the Judicial Magistrate of the First Class-II, Nedumangad accusing offence under Section 55(a) of the Abkari Act, with an allegation that at 6. P.M. on 29/3/1997, he was found carrying five litres of illicit arrack in a jerry can which was marked as MO1. PW1, while on petrol duty along with PW4, the preventive officer, detected the crime. They arrested the revision petitioner, seized the contraband along with MO1 for which Exhibit P1 Seizure Mahazar was prepared. A case as Crime No. 84/1997 was filed. After investigation the charge sheet was submitted. The revision petitioner pleaded not guilty when the particulars of the offence were read over and explained. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exhibits P1 to P5 and MO1 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner took a defence that he was falsely implicated and that he was summoned to the Excise office and got some papers signed. One witness was examined as DW1. 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 three months and a fine of Rs. 25,000/-

(2.) Aggrieved by the above conviction and sentence, he preferred Crl. Appeal No. 438/2001 before the Sessions Judge, Thiruvananthapuram. The Additional Sessions Judge (Adhoc-IV), by judgment dated 5/1/2006, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.

(3.) In support of the prosecution case, there is the testimony of PW1 and PW4. PW2, one of the independent witness admitted the signature in Exhibit P1. But he denied the witnessing of arrest of the revision petitioner and the seizure of the contraband. PW3, another witness even denied the signature in Exhibit PI. PWs 1 and 4 identified MO1 as the jerry can in which the revision petitioner was carrying illicit arrack. At the time of evidence, it was found empty. The label was found broken. According to PW1 sample was taken from the court and it was forwarded to the chemical examiner. PW1 would further state that after sampling the remaining quantity of liquor was destroyed as evidenced by Exhibit P3(a) order whereby the Magistrate ordered to take sample and destroy the balance. Exhibit P5 is the report of the chemical examiner certifying that the sample contained 25.16% of ethyle alcohol by volume. Other than the so called order of the learned Magistrate for taking sample and destroying the remaining quantity, there is no evidence regarding the taking of sample and the destruction of the contraband. Who took the sample, when took and when it was forwarded to the chemical examiner are not at all borne out by the evidence. Neither any witness was examined regarding the taking of the sample or any report of any staff of the court regarding the compliance of the order of the court is brought in evidence. In effect, there is nothing to show that the sample was taken from the liquid contained in MO1 or that Exhibit P5 is relating to the contraband seized by PWs 1 and 4. In the above circumstance, I am not inclined to give any reliance to Exhibit P5 and to come to a conclusion of guilty. Courts below had gone wrong in relying upon Exhibit P5 to arrive at a conclusion of guilt. Therefore, the revision petitioner is entitled to an order of acquittal.