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2013 DIGILAW 702 (KER)

Manikantan Pillai v. State of Kerala

2013-08-13

B.KEMAL PASHA

body2013
JUDGMENT B. Kemal Pasha, J. 1. The accused in S.C.No.105/2001 of the Additional Sessions Court (Adhoc-I), Thiruvananthapuram, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for one more year, has come up in appeal. 2. The prosecution case is that on 24.08.1998 at 3.45 p.m, while PW1 Circle Inspector of Excise, Attingal Range along with his party were on patrol duty in search of illicit liquor, they could see the appellant coming with MO1 plastic bag near the Vettiyar Culvert in Navayikulam village. On seeing the excise party, the appellant tried to move away. He was intercepted and the contents of the MO1 plastic bag was verified. It was found containing 60 packets, each containing 100 ml of arrack. The contraband was seized through Ext.P1 mahazar and the appellant was placed under arrest through Ext.P2 arrest memo. PW1 produced the appellant and the contraband along with the records before PW5, Excise Inspector, Varkala. He registered Ext.P5 occurrence report and produced the appellant before the court along with remand report. The properties were produced before court along with the records and forwarding note. PW3 Excise Inspector, Varkala, who was the successor in office to PW5, on getting Ext.P4 certificate of chemical analysis, filed the complaint. 3. On the side of prosecution, PWs.1 to 5 were examined and Exts.P1 to P5 were marked. MO1 and MO2 series were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that any sample was not drawn from the contraband in the presence of the appellant at the time of seizure. Further, it is also argued that there is no evidence to show, as to when the sample was drawn, who drew the sample and when it was forwarded for chemical analysis. 5. PW1 has clearly admitted that no sample was drawn at the spot in the presence of the appellant. Further, it is also argued that there is no evidence to show, as to when the sample was drawn, who drew the sample and when it was forwarded for chemical analysis. 5. PW1 has clearly admitted that no sample was drawn at the spot in the presence of the appellant. PW2, who was cited as independent witness by the prosecution, has turned hostile to the prosecution and did not support the prosecution case, even though he has admitted his signature in Ext.P1 seizure mahazar. PW4 was the Excise Inspector, Attingal, who was also present along with PW1 at the time of seizure. He has corroborated the versions of PW1 in all material particulars. According to PW1, he produced the accused as well as the contraband along with the records before PW5 Excise Inspector, Varkala. According to PW5, he produced the accused before the court through remand report and produced the properties along with forwarding note and the records. According to PW3, on receipt of Ext.P4 certificate of chemical analysis which reveals that the sample contained 28.27% of Ethyl Alcohol, he completed the investigation and filed the complaint. 6. As rightly pointed out by the learned counsel for the appellant, the matter involved in this case was handled by PW1 in a reckless manner. He ought to have drawn samples in the presence of the appellant at the time of seizure or atleast on reaching the Excise Office. Here in this case, there is no evidence to show as to who had drawn the sample that was allegedly subjected to chemical analysis, for which Ext.P4 was obtained. There is no evidence to show as to when and where the sample was drawn. There is no evidence to show that the forwarding note was filed by PW3. Apart from all these, the copy of the property list has not been produced to show as to when the contraband was produced before court. A Division Bench of this Court in Ravi v. State of Kerala, 2011(3) KLT 353 has held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. A Division Bench of this Court in Ravi v. State of Kerala, 2011(3) KLT 353 has held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. In this case, there is absolutely nothing to show that the sample allegedly subjected to chemical analysis, for which Ext.P4 was prepared, is one drawn from the contraband allegedly seized from the appellant. Matters being so, the conviction is bad in law and therefore, the conviction and sentence passed by the court below through the impugned judgment, are liable to be set aside. In the result, this appeal is allowed and the conviction and sentence passed by the court below are set aside. The accused is acquitted. His bail bonds shall stand cancelled and he is set a liberty forthwith.