The conviction and sentence under Section 55(g) of the Kerala Abkari Act are under challenge in this revision. On a complaint that, on 18.5.1996 at about 1.30 pm., the revision petitioner was found in possession of ten litres of wash meant for distillation of arrack, she faced prosecution before the Judicial First Class Magistrate Court, Kasargode in CC.No.584/1996. The offence was detected by the Excise Inspector, Kasargode while doing patrol duty with other staff including the Excise Preventive Officer. The accused was arrested on the spot and the quantity of wash was seized as per seizure mahazar. Required sample was taken, and the remaining quantity of wash was destroyed. Later, the properties were produced in court, and after necessary investigation, complaint was also filed in court by the Excise Inspector. The revision petitioner pleaded not guilty during trial. The prosecution examined four witnesses in the trial court and also marked Exts.P1 to P3 and MO1. Of the four witnesses, two are independent witnesses, but they turned hostile. However, they admitted their signature in the detection mahazar marked as Ext.P1. The Excise Inspector and the Preventive Office gave evidence regarding the detection including arrest of the accused and seizure of ten litres of wash from her possession. On an appreciation of evidence the trial court found the revision petitioner guilty under Section 55(g) of the Kerala Abkari Act. On conviction she was sentenced to undergo imprisonment for six months and to pay a fine of Rs.1,000/-.
2. Aggrieved by the conviction and sentence the revision petitioner filed Crl.Appeal No.127/1998 before the Sessions Court, Kasargod. In appeal, the learned Addl.Sessions Judge (Ad hoc-I), Kasargode confirmed the conviction and sentence, and accordingly dismissed the appeal. Now the revision petitioner challenges the legality and propriety of the conviction and sentence in this revision.
3. On a perusal of the evidence given and the materials produced I find that the prosecution has proved a case that Pw1 had arrested the accused as alleged, but the prosecution has failed to prove the very material evidence that the sample involved in this case is the very same sample collected and seized from the possession of the petitioner.
4. Of course, as usual, the independent witnesses turned hostile but the official witnesses gave evidence proving the detection. The detection was made on 18.5.1996, but the property (specifically the sample) was produced in court only on 13.6.1996. The prosecution has not given any explanation for the delay of about one month in producing the property in court. Pw2 has not given any satisfactory evidence regarding the sampling process. The prosecution is bound to prove that sample was, in fact, properly collected from the property found in the possession of the petitioner, and that the very same sample was analysed in the laboratory. Anyway definite evidence is not there to prove the sampling process as required under law. These necessary aspects were not elicited during trial by the learned Asst.Public Prosecutor in charge of the case. Nothing was elicited or brought out in evidence by way of explanation for the long delay in producing the sample in court. I find some suspicious circumstances in this case regarding the sampling process. I am inclined to give the benefit of this doubt to the revision petitioner. It is not known who produced the property in court, and how the delay of about one month occurred in producing the property in court, or whether anybody had effective control over the property till production in court. There is no material to rule out the possibility of tampering with the sample. This is an area where the accused will get the benefit of delay, if not properly explained. I find that on this ground the revision petitioner is entitled for acquittal.
5. In the result, this revision is allowed. The conviction and sentence against the revision petitioner under Section 55(g) of the Kerala Abkari Act are set aside on the finding that she is not proved to be guilty, and accordingly she is acquitted of the said offence.
The Registry is directed to send back the lower court records forthwith.
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P. UBAID, (Judge)
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PA TO JUDGE.