RAMAN, S/O.CHOMAN, HARIJAN COLONY, BANDIYODU MANGALPADY VILLAGE, KASARAGOD TALUK AND DISTRICT Vs. THE SUB INSPECTOR OF POLICE, MANJESHWAR POLICE STATION AND STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) THE Sub Inspector of Police, Manjeswaram, in Sessions Case No. 244/1999, on the file of the Assistant Sessions Judge, Kasaragod, prosecuted the revision petitioner for offence under Section 55(a) of the Abkari Act with an allegation that at 9.30 a.m., on 2.1.1998, at the bus waiting shed at Thalappady, the revision petitioner was carrying 44 bottles, each containing 180 mls of Indian Made Foreign Liquor by name A.J. Fenny manufactured in Karnataka. PW1 seized the contraband for which Ext.P1 mahazar was prepared. The revision petitioner was arrested. Two of the bottles were sent for chemical examination. After chemical examination, it was certified by Ext.P6 report that the samples contained 33.05 and 33.39 % by volume of ethyl alcohol. 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. Exts.P1 to P6 and 1 and 2 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1) (b) of the Code of Criminal Procedure. The revision petitioner advanced a plea of total denial and further stated that he was taken custody by police from his house. However, no defence evidence was let in. The learned Assistant Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for two years and a fine of rupees one lakh with a default sentence of rigorous imprisonment for a further period of one year.

(2.) ASSAILING the above conviction and sentence, the revision petitioner preferred Crl. A. No. 199/2001 before the Sessions Judge, Kasaragod. The Additional Sessions Judge (Adhoc -1), Kasaragod, to whom the appeal was made over, by judgment dated 30.3.2005 concurred with the trial court in finding the revision petitioner guilty. However, the substantive sentence was reduced to rigorous imprisonment for six months. The fine imposed was sustained. Assailing the legality, correctness and propriety of the above conviction and modified sentence, this Revision Petition is preferred.

(3.) THE main argument advanced is that there is inordinate delay in forwarding the material objects to the court and there is no evidence to conclude that Ext.P6 report of the chemical examiner is relating to the article seized from the revision petitioner. It was also argued that there is no evidence regarding the sampling. Going by the evidence of PW1 and Ext. P1 seizure mahazar, I am not inclined to accept the argument of the learned counsel for the petitioner regarding the sampling. But regarding the production of the sample and material objects before the court and forwarding of the sample for analysis, I find that there is some inconsistencies. PW1 would depose that the material objects and sample were produced before the court on the next day. But Ext. P4 property list would show that the property list was prepared only on 10.1.1998 and produced before the court on 12.1.1998. PW1 did concede in cross examination that the properties were produced before the court only on 12.1.1998. Even then he has no explanation for the delay. There is no whisper in his evidence that till 12.1.1998 the material objects and the sample were in his safe custody. A scrutiny of Ext. P4 would show that on the same day the material objects were handed over back from the court to the Station House Officer, Manjeswaram, for safe custody despite the fact that Ext.P5 forwarding note was also filed before the court on 12.1.1998. When the sample bottles were produced back before court for sending it to the Chemical Examiner is not born out by any evidence. So also, there is no evidence on record to come to a conclusion that the material objects, which were taken back on 12.1.1998 from court, were in the safe custody of either PW1 or any other responsible officer till it was again produced before the laboratory. In fact, there is lack of evidence regarding the sending of sample for chemical examination. Therefore, Ext.P6 cannot be relied upon to determine the nature of the liquid contained in the bottles seized from the appellant. In the above circumstance, I find that it would be just and appropriate to give the benefit of doubt to the revision petitioner. In the result, the Revision Petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted. He is set at liberty. The bail bond executed by him would stand cancelled. The fine amount, if any, realised shall be refunded to him.