Inadequate proof of evidence chain and procedural lapses result in acquittal under the Abkari Act.

O R D E R

This Criminal Revision Petition has been filed by the revision petitioner under Sections 397 and 401 of the Code of Criminal Procedure , challenging the judgment of conviction and sentence passed against him for the offence punishable under Section 55 (a) of the Abkari Act by the Assistant Sessions Court, Payyannur as per the judgment dated 12.04.2011 in S.C No.1603/2005, which was confirmed in appeal by the Additional Sessions Judge-III, Thalassery, as per judgment dated 08.10.2015 in Crl. Appeal No. 266/2011. The revision petitioner is the sole accused in the said case.

2. The prosecution case is that on 04.02.2003, at about 2:40 PM, the accused was found in possession and transporting 36 bottles of Indian Made Foreign Liquor containing 375 ml each meant for sale in Karnataka State only, in a bus bearing registration No.KL-13-G-8781, in violation of the provisions contained under the Abkari Act . Thus, the accused is alleged to have committed an offence punishable under Section 55 (a) of the .

3. During trial, from the side of the prosecution, PW1 to PW3 were examined and marked Exts.P1 to P9. After the closure of the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C, during which he denied all the incriminating circumstances brought out against him in evidence. As it was not a fit case to acquit the accused by invoking the provision contained under Section 232 of Cr.P.C, he was directed to enter on his defence and to adduce any evidence that he may have in support thereof. However, from the side of the accused, no evidence whatsoever was adduced.

4. Finally, the learned Assistant Sessions Judge found the accused guilty of the offence punishable under Section 55 (a) of the Abkari Act and convicted him. The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- for the offence for which he was found guilty. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a period of sixty days.

5. The accused carried the matter in appeal by filing Crl.

Appeal No.266/2011. The learned Additional Sessions Judge, Thalassery, who heard the appeal, confirmed the finding and sentence passed by the trial court.

6. Heard Sri. Mirsad, the learned counsel for the revision petitioner, and Smt. Maya. M. N., the learned Public Prosecutor, and also perused the records.

7. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the allegations levelled against him, and he was booked in this case based on some mistaken identity. According to the counsel, the accused has no connection whatsoever with the liquor seized in the case, and he was implicated in this case on the basis of some surmises and conjectures. According to the counsel, the trial court as well as the appellate court undermined the fact that there is no convincing evidence that the sample allegedly drawn from the liquor seized in this case is the very same sample that reached the court and ultimately reached the hands of the chemical examiner for analysis. The learned counsel for the revision petitioner pointed out that the sample seal or specimen seal impression of the seal used for sealing the sample bottle is neither provided in the seizure mahazar nor in the forwarding note. The counsel urged that in the absence of seal in the seizure mahazar, there is no guarantee that the sample drawn from the spot is the sample that reached the court, which ultimately analyzed the laboratory. Likewise, the learned counsel submitted that in the absence of a seal in the forwarding note, there is no guarantee that the chemical examiner got suff