A conviction under the Abkari Act requires legally admissible evidence, including proper handling of seized materials.

O R D E R

Revision petitioner was found guilty by the Judicial Magistrate of the First Class, Pattambi in S.T.No.2040/1996 for offence under Section 58 of the Abkari Act . Consequently, he was convicted and sentenced to simple imprisonment for one month and a fine of Rs.15,000/- with a default of sentence of simple imprisonment for two months. Though he preferred Crl.A.No.4/1998, he was not successful. Assailing the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

2. The allegation against the revision petitioner is that, on

10.1.1996 at 6.30 p.m, while the Excise Inspector attached to Thrithala Excise Range, who was examined as PW1, moving on patrol duty, found the revision petitioner carrying MO1 jerry can containing 1 ½ litres of arrack.

3. I have heard Adv. Smt. Shabarsha, the learned counsel : 2:

appearing for the petitioner and Ms. Madhu Ben, the learned Government Pleader. The learned counsel took me through the evidence on record and the judgment impugned.

4. PW1, the Excise Inspector, had given evidence regarding the arrest and seizure. PW2, the Guard, who was accompanying PW1, had also given evidence. PW3 is an attester to Ext.P1 seizure mahazer prepared by PW1.

5. Going by the evidence of PWs 1 to 3 , I find that only Ext.P1 was marked. In the judgment of the trial court also, it is seen that Ext.P1 alone was marked. But the learned Magistrate found the revision petitioner guilty basing upon the report of a Chemical Examiner, which was said to have been marked as Ext.P2, wherein it is allegedly certified that the sample contained 38.53% by volume of ethyl alcohol. Critically going through the evidence of PW1, I find no whisper in his evidence regarding the forwarding of the sample for chemical analysis or obtaining any report. Then, how such a report was marked as Ext.P2, is not borne out by the judgment of the courts below. A conviction basing upon a document which was not brought in : 3:

evidence is not legally sustainable. If Ext.P2 is rejected, there is nothing on record to come to a conclusion regarding the nature of the liquid seized. Therefore, I am not inclined to sustain the conviction under challenge. Adding to that, though the seizure was on 10.1.1996, the material objects were produced before court only on 24.2.1996. According to PW1, he was in a confusion as to before which court the material objects were to be produced. How the confusion arose, is not at all explained. More and more, there is no whisper in the evidence of PW1 that till the material objects were produced before court, it was in his safe custody. In the above circumstance, prosecution had not explained the delay. There is also no proof that the material objects were in the safe custody of PW1 or that of any competent officer till it reached the Chemical Examiner. For that reason also, no reliance can be given to Ext.P2. So, I find that the conviction and sentence under challenge are not sustainable.

In the result, the revision petition is allowed. While setting aside the conviction and sentence under challenge, the : 4:

revision petitioner would stand acquitted and set at liberty. The bail bond executed by him shall stand cancelled. The fine amount, if any, realised shall be refunded.

Sd/-

P.S. GOPINATHAN, JUDGE.

cl

/true copy/

P.S. to Judge

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P.S. GOPINATHAN, J.

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Crl.R.P.NO.672 OF 2002 .........................................

17th November, 2012

O R D E R

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