O R D E R

The revision petitioner is the accused in the case S.C.No.572/2006 on the file of the Court of the Assistant Sessions Judge, Kasaragod.

2. The prosecution case is that, on 23.09.2004, at about

16.00 hours, at Nelakkala Colony Road in Kasaragod Municipality, PW1 Excise Circle Inspector found the petitioner/accused in possession of a plastic bag containing 50 plastic covers, each cover having the capacity of 100 ml, full of arrack.

3. The trial court framed charge against the petitioner for the offence punishable under Section 55 (a) of the Abkari Act . The petitioner pleaded not guilty to the offence and claimed to be tried.

4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P10 documents. No evidence was adduced by the accused.

5. The trial court found the petitioner guilty of the offence punishable under Section 55 (a) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo rigorous 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 rigorous imprisonment for a period of six months.

6. The petitioner filed Crl.A.No.172/2009 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. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the accused in this revision petition. 8. Heard. Perused the records.

9. PW1 Excise Circle Inspector, who detected the offence, has given evidence regarding the occurrence in detail. The independent witness, who was examined as PW3, did not support the prosecution case. PW2 is the the Preventive Officer, who was in charge of the Excise Inspector of Ksaragod Excise Range Office, who registered the case against the accused. PW4 is the Excise Inspector who conducted the investigation of the case.

10. Ext.P9 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained

33.65% by volume of ethyl alcohol.

11. 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.

12. PW1 has given evidence regarding the seizure of the packets of arrack from the possession of the accused and the drawing of sample at the spot of the occurrence. He has stated that he entrusted the accused and the records and the seized articles at the Kasaragod Excise Range Office. PW2, 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 properties in the court as per Ext.P7 property list. Ext.P7 list would show that only the sample was produced before the court. It is seen from the records that the sealed plastic bag, which allegedly contained 47 plastic covers containing the liquid and three empty plastic covers from which sample was taken, was produced before the Assistant Excise Commissioner on

11.11.2004 by PW4 Excise Inspector as per Ext.P5 inventory list.

13. The 47 plastic covers containing the liquid, after taking sample, were not produced before the trial court and not marked in evidence as material object.

14. Learned Public Prosecutor has submitted that Ext.P5 inventory of the liquor was prepared by the authorised officer and it was certified by the Magistrate concerned under Section 53A of the Abkari Act and therefore, it was not necessary to produce the bulk quantity of liquor before the trial court.

15. 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 Magis