Surendran vs State of Kerala

P.S. Gopinathan, J.—Revision petitioner is the accused in C.C.No. 247/1998 on the file of the Judicial Magistrate of the First Class-II, Kochi. The Sub Inspector of Police, Kochi Kasba Police Statoin, who was examined as PW9, filed a charge sheet against the revision petitioner accusing him offence u/s 55 (a) of the Abkari Act with an allegation that on 26/1/1997, the revision petitioner was found in possession of 250 bottles of Old Port XXX Rum measuring 375 mls and 150 bottles of Old Port XXX Rum measuring 750 mls. in a lorry bearing Regn.No. KL-13/1299 in which he was the driver. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. After trial, he was found guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for 6 months and a fine of Rs. 25,000/- with a default sentence of rigorous imprisonment for two months. Assailing the above conviction and sentence Crl.A. 359/2002 was preferred before the Sessions Judge, Ernakulam. The Second Additional Sessions Judge to whom the appeal was made over, by the impugned judgment dated 16/3/2004 dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in Appeal this revision petition is preferred.

I have heard the Learned Counsel appearing for the revision petitioner and the learned Government Pleader. Perused the judgments of the Courts below. The Learned Counsel had taken me through the evidence of PWs 1 to 9.

Going by the evidence of PWs 1 to 9, I find that the prosecution had succeeded to establish that 400 bottles were seized from a lorry bearing Regn. No. KL-13/1299, in which the revision petitioner was found. One of the arguments advanced by the Learned Counsel for the revision petitioner is that there is nothing to come to a conclusion that the liquid in the bottles was any liquors or it contained ethyl alcohol. Prosecution would rely upon Exhibit P6 report of the Chemical Examinor, wherein it is certified that the first series of sample bottles contained 41.91% by volume of ethyl alcohol and 2nd series of sample bottles contained 41.77% by volume of ethyl alcohol. PW1 is an attester to Exhibit P1 Seizure Mahazar. PW2 is an attester to Exhibit P2 scene mahazar. PWs 3, 4 and 5 were Police officers accompanying PW8, the Sub Inspector of Police, Flying Squad, who had detected the offence. There is no whisper in the evidence of PWs 3 to 5 and 8 that any sample was taken from the bottles seized. PW7, the Excise Circle Inspector also has no case that any sample was taken. PW9, who laid the charge sheet has also no case that he had taken any sample from the bottle seized. There is also no whisper in the evidence of the detecting officer that he tasted or smelt the liquid to ascertain its nature. In effect, there is no evidence regarding the nature of the liquid in the bottle or regarding the sampling from the liquid contained in the bottles seized. Therefore, Exhibit P6 cannot be connected with the seized liquid. For that reason, I find that the prosecution shall fail because there is no material on record to come to a conclusion that Exhibit P6 relates to the liquid contained in the bottles alleged to have been seized from the revision petitioner. The conviction and sentence under challenge are not sustainable.

In the result, the revision petition is allowed. While setting aside the conviction and the sentence, the revision petitioner would stand acquitted and is set at liberty. The fine amount, if any realised, shall be refunded.