Allowed

Jose v. Excise Inspector, Nileswar

Kerala HC24 Jun 2008Crl.Rev.Pet/960/2000

Case brief

AI extract

What is this about?

The High Court set aside the conviction of an accused under Section 55(a) of the Abkari Act regarding Indian made foreign liquor. The court held that the prosecution failed to establish that samples from the seized bottles were drawn in the presence of witnesses and analyzed, as no sample was drawn by the investigating officers and the chain of custody was not proven.

What did the court decide?

Revision petitioner set at liberty and acquitted of the offence punishable under Section 55(a) of the Abkari Act.

Jose Vs Excise Inspector, Nileswar — Narcotics (NDPS) | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR

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TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930

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Crl.Rev.Pet.No. 960 of 2000(C)

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----------------------------CRA.218/1997 of SESSIONS COURT, KASARAGOD CC.637/1995 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG

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REVN. PETITIONER/APPELLANT/ACCUSED:

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JOSE, S/O. JOSEPH, MATTATHIL VEEDU, AYANNUR, CHITTARIKKAL VILLAGE, HOSDURG TALUK, P.O. CHITTARIKKAL, KASARAGODE DISTRICT.

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BY ADV. SRI.DILIP MOHAN

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RESPONDENTS/COMPLAINANT & STATE:

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EXCISE INSPECTOR OF NILESHWAR RANGE, HOSDURG TALUK.

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.R.P.NO. 960/2000

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: 2 :

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ORDER ON Crl.M.P. NO. 5142 IN CRL.R.P.NO. 960/2000

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DISMISSED

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sd/- V. RAMKUMAR, JUDGE.

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24.06.2008

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V. RAMKUMAR , J.

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========================== Crl.R.P. No. 960 of 2000 ========================== Dated this the 24^th day of June, 2008.

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ORDER

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The revision petitioner, who was the accused in C.C. No. 637 of 1995 on the file of the Judicial First Class Magistrate-II, Hosdurg for an offence punishable under Section 55(a) of the Abkari Act, challenges the conviction entered and the sentence passed against him concurrently by the courts below for the said offence. For the conviction under Section 55(a) of the Abkari Act, he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/- and on default to pay the fine, to suffer rigorous imprisonment for three months.

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The case of the prosecution is that on 27.08.1995, at about 10 p.m., the accused was found in possession of 15 bottles each containing 500 ml of Indian made foreign liquor in contravention of the provisions of the Abkari Act and the accused has thereby committed an offence punishable under Section 55(a) of the Abkari Act.

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PW1 is the Head Constable of Chittarikkal Police Station who is alleged to have come across the accused at 10 p.m on 27.08.1995 along with MO2 bag containing MO1 series of bottles which were altogether 15 bottles each of 500 ml capacity. Under the reasonable

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CRL.R.P. NO. 960/2000 : 2:

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belief that those bottles were containing contraband liquor, PW1 is alleged to have seized the bottles and the bag under Ext.P2 Mahazar and arrested the accused after registering the case as crime NO. 176 of 1995. He claims to have enlarged the accused on bail and then handed over the investigation files together with all records and the properties to the Excise Office. PW2 was the Nileswaram Excise Inspector who claims to have conducted the investigation and filed the charge sheet before the court. Ext.P3 occurrence report and Ext.P4 certificate of chemical analysis were marked though him.

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After a careful perusal of the oral and documentary evidence in the case, I am not satisfied that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. PW1, the Head Constable of Chittarikkal Police Station who detected the offence, did not draw any sample from any of the 15 bottles allegedly seized by him under Ext.P2 Mahazar. PW2, the Excise Inspector also did not draw any sample from any of the bottles. Except marking the charge sheet as well as the certificate of chemical analysis, PW2 did not say that he had submitted any requisition or forwarding note before the Magistrate for drawing samples from each of the bottles and forwarding the same to the chemical examiner. Ext.P4 is the

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CRL.R.P. NO. 960/2000 : 3:

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certificate of chemical analysis dated 29.06.1996. The detection and seizure in this case was on 27.08.1995. It is not known as to when the properties reached the court. The property list in Form 151(A) was not produced or marked in the case. Even assuming that 15 bottles seized by PW1 reached the court without any undue delay, it is not shown as to who drew the samples therefrom and who despatched the same to the chemical examiner. Ext.P4 certificate shows that 15 sealed bottles each containing 180 ml were received by the chemical examiner along with the covering letter dated 26.02.1996 of the Magistrate and the contents of the sample bottles when analysed were found to contain 43.27% by volume of ethyl alcohol. The prosecution in a case of this nature can succeed in bringing home the guilt of the accused only if it is shown that samples were drawn from each of the 15 bottles either in the presence of witnesses or in the presence of responsible persons and it was the very same samples which eventually reached the hands of the chemical examiner. There is absolutely no material to show this aspect of the matter. There is no contemporaneous records of the Magistrate also ordering the extraction of samples from the 15 bottles or any member of the court staff complying with the directions of the Magistrate and drawing

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CRL.R.P. NO. 960/2000 : 4:

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samples and despatching the same to the chemical examiner. The thondi Section Clerk also was not examined. Such being the position, it cannot be said that Ext.P4 is the certificate of analysis pertaining to the samples drawn from the 15 bottles allegedly seized by PW1 from the possession of the accused. The conviction recorded by the courts below overlooking these vital aspects cannot be sustained and is accordingly set aside. The revision petitioner is therefore acquitted of the offence punishable under Section 55(a) of the Abkari Act and is set at liberty.

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This revision is allowed as above.

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Dated this the 24^th day of June, 2008.

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V. RAMKUMAR, JUDGE.

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CRL.R.P. NO. 960/2000

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: 5:

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V. RAMKUMAR, J

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CRL. R.P. No. 960 of 2000

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24^th day of June, 2008

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ORDER

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CRL.R.P. NO. 960/2000 : 6:

Jose v. Excise Inspector, Nileswar

Case brief

What is this about?

What did the court decide?

Jose v. Excise Inspector, Nileswar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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