BIJU Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision petition is preferred by the accused against the judgment in Crl.A.836 of 2002 of Additional Sessions Judge, North Paravur. He was charge sheeted in SC No.226 of 2001 by the Additional Assistant Sessions Judge, North Paravur under Sec. 58 and 8(1) and (2) of the Abkari Act (for short 'Act'). Learned Assistant Sessions Judge convicted the accused under Sec. 8(1) and 58 of the Abkari Act and sentenced to simple imprisonment for two years and fine of Rs. 1,00,000.00 under Sec. 8(1) of the Abkari Act, no separate sentence was imposed under Sec. 58 of the Abkari Act. Against that, he preferred the above appeal, where learned Sessions Judge dismissed the appeal. Being aggrieved by that, accused preferred this revision petition.

(2.) The charge against the accused was that on 18.10.1999, at 4.30 pm, the Excise Inspector, Angamaly was conducting patrol duty, accused was found in possession of two litres of arrack in a can in front of the chapel at Thavalappara on the Thavalappara-Pooppani public road. He was arrested and the contraband articles were seized by the Excise Inspector, reaching at the excise office, he entrusted the accused the contraband articles and seizure mahazar to the Excise Range office, Angamaly where they registered a crime. After completing investigation, Excise Inspector, Angamaly laid charge against the accused in the Judicial First Class Magistrate, Aluva. Subsequently, the case was committed to the Sessions Court, from there it was made over to the Additional Assistant Sessions Judge, North Paravur for trial. In pursuance of the trial, prosecution examined PW1 to PW4 and marked Ext.P1 to P7. MO1 was admitted as material object. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 to DW3 in support of his defence and marked Ext.D1.

(3.) Learned counsel appearing for the revision petitioner contended that sample was not taken by the detecting officer at the time of seizure of the contraband articles. No report was furnished by the Excise Inspector, Angamali to show that they had taken sample from the excise office. In the absence of such evidence, Ext.P6 chemical analysis report is not admissible in law for a conviction.