O R D E R

The revision petitioner is the accused in the case S.C.No.346/2011 on the file of the Court of the Assistant Sessions Judge, Kasaragod.

2. The prosecution case is that, on 05.06.2010, at about

18.00 hours, at a bylane at the place Karanthakadu in Kasaragod, PW1 Excise Circle Inspector found the petitioner/accused in possession of a can containing ten litres of arrack.

3. The trial court framed charge against the accused for the offence punishable under Section 8 (1) read with 8(2) of the Abkari Act . The petitioner/accused pleaded not guilty to the offence and he claimed to be tried.

4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P11 documents. No evidence was adduced by the accused.

5. The trial court found the petitioner guilty of the offence punishable under Section 8 (1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of two years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo imprisonment for a period of three months.

6. The petitioner filed Crl.A.No.137/2013 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal.

7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition.

8. Heard. Perused the records.

9. PW1 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the excise guard who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence.

10. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident.

11. Ext.P11 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 27.20% by volume of ethyl alcohol.

12. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner.

The reasons are as follows.

13. PW1 has given evidence that he took sample of the liquid from the can and sealed the sample bottle and also the can containing the residue and affixed label, bearing his signature and the signature of the witnesses and the accused, on them. There is also a specific recital to that effect in Ext.P5 seizure mahazar.

14. PW1 has given evidence that he entrusted the accused and the records and the seized articles at the Kasaragod Excise Range Office. PW5, who was in charge of the Excise Inspector of the excise range office, has given evidence that he registered Ext.P6 crime and occurrence report. He has also given evidence that he produced the sample before the court as per Ext.P7 property list. He has further deposed that he produced the remaining articles, that is, the can containing the residue before the Deputy Excise Commissioner.

15. The can containing liquid allegedly seized from the possession of the accused was not produced before the trial court and it was not marked in evidence as a material object.

16. Learned Public Prosecutor would point out that the Deputy Excise Commissioner had prepared Ext.P9 inventory of the can containing the liquid and produced it before the Magistrate and the learned Magistrate has certified the inventory as correct as required under Section 53A of the Abkari Act and therefore, there was no necessity to produce the can containing the liquid before the trial court.

17. Section 53A of the Act deals with preparation of inventory, by the authorised officer, of the liquor or other articles seized under the Act and certification of the inventory by the Mag