SIVARAJAN vs STATE OF KERALA

The revision petitioner herein is the accused in S.C

80/2000 of the Court of Session, Alappuzha. He faced

prosecution before the learned Additional Assistant

Sessions Judge, Alappuzha under Section 55 (a) of the

Kerala Abkari Act ("the Act" for short) on the allegation

that at about 10.30 a.m on 11.01.1999, he was found

possessing 1.5 litres of arrack contained in a plastic bottle.

The offence was detected by a Preventive Officer of the

Kayamkulam Excise Range. He arrested the accused and

seized the arrack bottle as per a mahazar. On the basis of

the arrest and seizure, the crime and occurrence report was

registered by the Excise Inspector. He investigated the

case and submitted final report in court. The accused

appeared before the learned trial Judge, and pleaded not

guilty to the charge framed against him under Section 55

(a) of the Act. Instead of framing charge under Section 8

(2) of the Act, charge was wrongly framed by the trial court

under Section 55 (a) of the Act.

The prosecution examined five witnesses in the

trial court, and proved Exts.P1 to P5 documents. The MO1

and MO2 properties were also identified during trial. The

accused denied the incriminating circumstances when

examined under Section 313 Cr.P.C. In defence, he

examined a witness as DW1.

On an appreciation of the evidence, the trial court

found the accused guilty. On conviction, he was sentenced

to undergo rigorous imprisonment for one year, and to pay

a fine of 1 lakh by judgment dated 11.4.2002. Aggrieved

by the judgment of conviction, the accused approached the

Court of Session, Alappuzha with Crl.A 104/2002. In appeal,

the learned Additional Sessions Judge,(Adhoc-II), Alappuzha

confirmed the conviction and sentence, and accordingly

dismissed the appeal.

When this revision petition came up for hearing,

this Court noticed some infirmities, the benefit of which

must necessarily go to the accused.

PW5 is the Excise Inspector, who registered the

crime and occurrence report and also investigated the case.

He claims to have submitted final report in court. On a

perusal of the final report in this case, I find that it is only a

draft final report approved by the learned Public Prosecutor.

The draft being approved by the Law Officer, the Excise

Inspector should have submitted a proper and fair final

report in court. Such a final report is not seen in the files.

In short, this is a prosecution without a final report as

required under the law. On this ground itself, the case must

collapse.

The detection was made by PW1 on 11.1.1999,

but the properties were produced in court only on

13.1.1999. When asked about this, the Excise Inspector

stated that on 11.1.1999 itself, he had produced the

properties in court and the properties were probably in the

custody of the court till 13.1.1999. This cannot be accepted

because the property list shows that the properties were

produced in court only on 13.1.1999.

Yet another curious aspect is that there is

nothing to identify the sample produced in this case. The

copy of the forwarding note contains the specimen seal

"K.A" affixed on the sample. PW1 who detected the offence

is one Karunakaran Nair. His evidence is that he had

affixed his personal seal on the sample, but he does not say

or explain what that seal is. The seal "K.A" will not tally

with the name and descriptions of the Preventive Officer

Karunakaran Nair. It is not known what seal was actually

affixed on the sample bottle. This is not seen explained by

PW1 or PW2 or even PW5. In short, there is some confusion

regarding the identity of the sample produced in court. PW5

says that the properties were not in the custody of any

Excise official till 13.1.1999. If so, it requires explanation,

or in whose custody the properties were till 13.1.1999. The

forwarding note also does not contain the name of the

Excise Guard deputed to take the sample to the laboratory.

This Court has settled on this aspect that the forwarding

note must contain the specimen of the seal affixed on the

sample and also the name of the Constable or Excise Guard

deputed to take the sample to the laboratory. I find that on

these grounds also, the accused is entitled for acquittal.

In the result, this petition is allowed. The revision

petitioner is found not guilty of the offence alleged against

him under the Kerala Abkari Act and he is acquitted of the

said offence in revision. Accordingly, the conviction and

sentence against him in SC 80/2000 of the court below, and

confirmed in appeal, will stand set aside, and the revision

petitioner will stand released from prosecution.