Insufficient evidence to support conviction under the Abkari Act led to acquittal.

O R D E R

The concurrent verdicts of Assistant Sessions Court, Kottarakkara, and the Additional Sessions Court-I, Kollam, in S.C.No.167/1999 and Crl.A.No.43/2000 respectively, convicting the petitioner/second accused for the commission of offences under Sections 55 (b) & 55(g) of the Abkari Act , and sentencing him for the commission of offence under Section 55 (b) of the , are under challenge in this revision petition.

2. The prosecution case is that the petitioner, along with the first accused, was found to have been involved in the manufacture of arrack out of wash, with the use of utensils and apparatus for distillation at about 06:45 a.m, on 03.08.1998, on the southern shore of the Kallada river in Punalur Village. PW5, the Assistant Sub Inspector of Punalur Police Station, and his team are said to have detected the offence, and seized the contraband arrack. The accused were not arrested, stating the reason that they swam across the river and took to their heels seeing the Police party. The Detecting Officer and his team are said to have collected samples from the contraband arrack and wash on the spot, and destroyed the remaining wash. The petitioner was arrested on

23.10.1998 and remanded to judicial custody. The Sub Inspector of Police (PW6) of Punalur completed the investigation and laid the charge-sheet before the Magistrate.

3. In the trial before the learned Assistant Sessions Judge, the prosecution examined six witnesses as PW1 to PW6, and brought on record eight documents as Exts P1 to P8. Five material objects were identified as MO1 to MO5. Three contradictions in the previous statements of PW2 & PW4 were marked as Exts D1 to D3 from the part of the accused. After an evaluation of the aforesaid evidence, the learned Assistant Sessions Judge, convicted the petitioner and the first accused for the commission of offence under Sections 55 (b) & 55(g) of the Abkari Act , and sentenced them under Section 55 (b) of the to rigorous imprisonment for five years, and fine of Rs.1,00,000/- with a default clause of rigorous imprisonment for two years. Though the petitioner challenged the aforesaid verdict in appeal, the learned Additional Sessions Court-I, Kollam, confirmed the findings of the Trial Court and dismissed the appeal. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

5. As already stated above, PW5 and his team were not able to arrest the accused on 03.08.1998, when they detected the offence and effected seizure of the contraband items from the southern shore Kallada river in Punalur Village. Samples are said to have been collected from the contraband wash and arrack by PW5 at the time of detection of offence. However, the evidence tendered by the prosecution is hopelessly silent as to the mode of collection of samples. There is absolutely no material to discern the way in which PW5 and his team collected the samples and secured it by affixing seal and label. So also, there are no documents brought on record by the prosecution to show that the sample bottles and the other contraband items were produced before the Judicial First Class Magistrate Court concerned in a tamper proof condition immediately after the detection of the offence. Nor had the prosecution placed the relevant records before the Trial Court to show that the sample bottles were transmitted from the Magistrate’s Court to the Chemical Examiners Laboratory after ensuring that there would be no chances of tampering. Neither the property list showing the production of sample bottles and the other contraband items before the Magistrate, nor the forwarding note showing the despatch