Evidence of detecting officer deemed unreliable without proper procedure demonstration; procedural flaws in seizing contraband critical for conviction.

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 order sentence passed against him for the offence punishable under Sections 55 (b) & 55(g) of the Abkari Act by the II Additional Assistant Sessions Court, Kozhikode as per the judgment dated 21.11.2016 in S.C No.417/2015, which was confirmed in appeal by the Additional Sessions Court-I, Kozhikode, as per judgment dated 12.06.2017 in Crl. Appeal No.518/2016. The revision petitioner is the sole accused in the said case.

2. The prosecution case is that on 26.07.2014, at about

04:45 p.m., in a partially constructed residential house of PW5, the accused was found in possession of 150 litres of wash, other utensils for brewing of arrack, in violation of the provisions contained under the Abkari Act . Thus, the accused is alleged to have committed an offences punishable under Sections 55 (b) &

55(g) of the Abkari Act .

3. During trial, from the side of the prosecution, PW1 to PW7 were examined and marked Exts.P1 to P9 and M.O.1 to M.O8. 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 Assistant Sessions Judge found the accused guilty of the offence punishable under Section 55 (g) of the Abkari Act and convicted him. The accused was sentenced to undergo simple imprisonment for two years 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 three months. However, the accused was found not guilty of the offence punishable under (b) of the and he was acquitted on the said charge.

5. The accused carried the matter in appeal by filing Crl.Appeal No.518/2016. The learned Additional Sessions Judge-I, Kozhikode, who heard the appeal, confirmed the finding and modified the sentence passed by the trial court, whereby the accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- with a default clause to undergo simple imprisonment for three months for the offence punishable under Section 55 (g) of the Abkari Act .

6. Heard Sri. Jeswin P. Varghese, 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 revision petitioner submitted that the accused is innocent of the allegations levelled against him, and the accused was implicated in this case on the basis of some surmises and conjectures. According to the learned counsel, the accused had no connection whatsoever with the contraband seized in this case or with the partially constructed house from where the same was allegedly recovered. The learned counsel further pointed out that the seizure mahazar, which is a crucial document as far as an Abkari case is concerned, is neither produced nor marked in evidence in this case. According to the counsel, the non-production and the non-marking of such a crucial document itself is fatal to the prosecution, entitling the accused to get an order of acquittal. In short, the crux of the argument of the learned counsel for the revision petitioner is that there is patent flaw in the manner in which the seizure and sampling procedures were carried out in this c