JOHNY vs STATE OF KERALA

The revision petitioner herein challenges the

conviction and sentence against him under Section 8(2) of

the Kerala Abkari Act (for short" the Act") in S.C 132/2003

of the Court of Session, Ernakulam. He faced trial before

the learned Assistant Sessions Judge, Muvattupuzha on the

allegation that at about 7.15 p.m on 4.2.2000, he was

found possessing 1.5 litres of arrack in a plastic bottle. The

offence was detected by a Preventive Officer of the

Kothamangalam Excise Range. On the basis of the said

detection, the Excise Inspector of the Range registered the

crime and occurrence report. Another Excise Inspector

took over investigation, and submitted final report in court,

after investigation.

The accused pleaded not guilty to the charge

framed against him in the trial court under Section 8(2) of

the Act. The prosecution examined five witnesses in the

trial court, and proved Exts.P1 to P11 documents. The MO1

bottle was also identified during trial by the detecting

officer. The accused denied the incriminating circumstances

when examined under Section 313 Cr.P.C. He did not

adduce any evidence in defence.

On an appreciation of the evidence, the trial court

found the accused guilty. On conviction, he was sentenced

to undergo simple imprisonment for one year, and to pay a

fine of 1 lakh by judgment dated 18.1.2006. Aggrieved by

the judgment of conviction, the accused approached the

Court of Session, Ernakulam with Crl.A 155/2006. In appeal,

the learned Additional Sessions Judge (Adhoc)- II,

Ernakulam confirmed the conviction, but reduced the

sentence. The substantive sentence was accordingly

reduced to simple imprisonment for six months and the

fine sentence was maintained. Aggrieved by the said

judgment of appeal dated 4.1.2006, the accused has come

up in revision challenging the legality and propriety of the

conviction and sentence.

PW3 is the Preventive Officer who detected the

offence. PW1 and PW2 examined as independent witnesses

turned hostile. PW4 is the Excise Inspector who registered

the crime and occurrence report and PW5 is the Excise

Inspector who investigated the case and submitted final

report in court. Ext.P10 is the copy of the forwarding note

submitted by the Excise Inspector. This Court has settled

the legal position that the copy of the forwarding note must

be produced in court and proved in evidence, and it must

contain the specimen of the seal affixed on the sample.

Without the specimen, the sample produced in court cannot

be identified. The forwarding note does not contain the

specimen of the seal affixed on the sample bottle by PW3.

The detection mahazar also does not show what seal was in

fact affixed by him on the properties. It is not known how

the sample and the other bottle could be identified during

the proceedings without the specimen of the seal. PW3

stated in evidence that he had not affixed any label on the

bottle seized from the hands of the accused. The important

point raised by the accused is that there is nothing

satisfactory to identify the sample and the other bottle

produced in court. On these aspects, the evidence given by

the prosecution is not satisfactory. The MO1 bottle does not

carry any label containing the signature or the thump

impression of the accused. It is necessary to identify the

property as the one seized from the hands of the accused.

The forwarding note does not contain even the name of the

Excise Guard deputed to take the sample to the laboratory

for examination. On this aspect also, this Court has settled

that it must contain the name of the Constable or the

Excise Guard deputed to take the sample to the

laboratory. Thus, I find that the prosecution has not

produced the necessary materials to identify the sample

bottle and also the other bottle containing liquor allegedly

seized from the hands of the accused. On these grounds,

the accused is entitled for acquittal.

In the result, this revision petition is allowed. The

revision petitioner is found not guilty of the offence under

Section 8(2) of the Act and he is acquitted of the said

offence in revision. Accordingly, the conviction and

sentence against him in SC 132/2003 of the court below

and confirmed in appeal will stand set aside and the revision

petitioner will stand released from prosecution.