VIJAYAN, S/O.IMBICHINAGAN Vs THE EXCISE INSPECTOR, KUNNAMANGALAM

The revision petitioner herein is the accused in S.C.

22/02 of the Court of Session, Kozhikode. He faced

prosecution before the First Additional Assistant Sessions

Judge, Kozhikode under Section 55(a) of the Kerala Abkari

Act (for short'' the Act"), on the allegation that at about 6.10

p.m on 31.10.1999, he was found possessing 1.5 litres of

arrack in a plastic can of 2.5 litres capacity. The offence

was detected by a Preventive Officer of the

Kunnamangalam Excise Range. He arrested the accused on

the spot, and seized the plastic can containing arrack as per

a mahazar. On the basis of the seizure made by the

Preventive Officer, the Excise Inspector registered the crime

and occurrence report, and investigated the case. Another

Excise Inspector submitted final report in court.

The accused appeared before the learned trial

Judge and pleaded not guilty to the charge framed against

him. The prosecution examined six witnesses in the trial

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

plastic can was also identified during trial. The accused did

not adduce any evidence in defence. However, he denied

the incriminating circumstances when examined under

Section 313 Cr.P.C.

On an appreciation of the evidence, the trial court

found the accused guilty. On conviction he was sentenced

to undergo simple imprisonment for four years and to pay a

fine of 1 lakh by judgment dated 28.6.2003. Aggrieved by

the judgment of conviction, the accused preferred appeal

before the Court of Session as Crl.A.361/2003. In appeal,

the learned Sessions Judge confirmed the conviction and

sentence, and accordingly dismissed the appeal by

judgment dated 20.1.2005. Now the accused is before this

court in revision.

The short question for consideration is whether

there is any illegality or infirmity in the prosecution case for

interference by this Court in revision.

Of the six witnesses examined in the trial court,

PW2 is the Preventive Officer who detected the offence and

PW1 is the Excise Guard who assisted the Preventive Officer

in the process of detection. PW5 is the Excise Inspector,

who registered the crime and occurrence report and PW6 is

the Excise Inspector who submitted final report in court. Of

course, I find that the offence was detected by a competent

officer, the crime and occurrence report was also registered

by a competent officer and investigation was also made by a

competent officer. But as regards the seal affixed on the

sample or the question of identification of the sample and

the can produced in court, I find something for interference.

The definite evidence given by PW1 is that the personal seal

"''Vasu" was affixed on the sample by the Preventive Officer

at the spot of detection. But the Ext.P4 copy of forwarding

note does not contain such a seal. The learned trial Judge

noticed during trial that the MO1 plastic can does not bear

any label now. It is not known what happened to the label

affixed thereon by the Preventive Officer. Without any label

or other description, the property cannot be identified. It is

not known how PW1 and PW2 identified the MO1 plastic can

as the can seized from the hands of the accused. Ext.P4

forwarding note will show that the sample forwarded for

analysis at the laboratory is some other sample bearing the

seal "K.V"'' and not "Vasu". I find that there is nothing to

identify the property involved in this case or the sample

produced in court for analysis. On this ground itself, the

accused is entitled for acquittal.

In the result, this petition is allowed. The revision

petitioner is found not guilty of the offence under Section 55

(a) of the Kerala Abkari Act and he is acquitted of the said

offence in revision. Accordingly, the conviction and

sentence against him in SC 22/2002 of the court below and

confirmed in appeal will stand set aside, and the revision

petitioner will stand released from prosecution.