Revision petitioner is the accused in C.C No.145/1997 on the file of the Judicial First Class Magistrate Court - II, Hosdurg. He was tried and convicted for an offence under Section 55(a) of the Abkari Act. In the course of trial, two witnesses were examined on the side of the prosecution and three documents were marked. MO's 1 to 3 were also marked. Learned Magistrate found, as alleged by the prosecution that the revision petitioner possessed 150 packets of illicit Karnataka made arrack, each containing 100 ml, on 03-02-1997 at about 8.30. p.m. The revision petitioner approached the Additional Sessions Court-II, Kasaragod in appeal, but that was dismissed by the learned Additional Sessions Judge confirming the conviction and sentence. Hence he has filed this criminal revision.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. Learned counsel for the revision petitioner submitted that the courts below overlooked the glaring illegalities in the prosecution and convicted the revision petitioner without sufficient evidence. Learned counsel submitted that the testimony of PW1, the Excise Inspector, does not show any legal requirement to convict the accused. That apart, no requisition submitted by the Investigating Officer for sending the sample of the contraband for chemical analysis was produced and marked. Further no forwarding note was also produced. To crown all these things, there is a delay of 12 days in producing the contraband before the court. According to PW1, the detection was on 03-02-1997. The contraband was produced before the court only on 17-02-1997. Who was in custody of the contraband during the period of 14 days was not spoken to by PW1. Further, PW1 though stated that he affixed a seal on the samples taken, no sample seal was produced either along with a forwarding note or otherwise to establish proper sampling of the contraband. These violations of procedure will go to the root of the matter. The accused is entitled to get the benefit of doubt in the light of the binding precedents in Sasidharan v. State of Kerala ( 2007 (1) KLT 720) and Ravi v. State of Kerala and Another (2011(3) K.L.T 353). Therefore, I find that the conviction and sentence cannot be sustained.
In the result, the criminal revision petition is allowed. Conviction of the petitioner under Section 55(a) of the Abkari Act in C.C No.145/1997 on the file of the Judicial First Class Magistrate Court - II, Hosdurg is hereby set aside. The revision petitioner shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by him as a condition for securing bail, it shall be returned to him.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, amk JUDGE.