evidence of PW5 is accepted as such, it would only show that a 7.50 ml bottle was seized from house No.10/353 and he sent it to the Excise Department on 8.6.1994. Though the property list is signed by PW1 indicating that he produced the seized bottle before the court, evidence of PW3 is that he did not produce it. There is no evidence as to who was in custody of the article from 8.6.1994 till it was produced in 1996. In such circumstances, when there is no evidence that the bottle was sealed and there is no evidence as to who had taken the sample which was examined in laboratory to forward Ext.P2 report, based on Ext.P2 report, it cannot be found that MO1 contains illicit arrack. Though PWs. 4 and 5 deposed by tasting and smelling that it was illicit arrack, based on that evidence alone, it is not possible to hold that it was illicit arrack. If that be so, conviction of the petitioner can only be set aside finding that prosecution did not establish the petitioner committed an offence under Section 55(a) of Abkari Act. Even if it is accepted, the offence will not come under Section 55(a) in view of the decisions of the Division Bench of this Court in Surendran V. Excise Inspector (2004 (1) KLT 404) and Mohanan V. State of Kerala (2004 (1) KLT 845). In such circumstances, conviction is to be set aside. Revision is allowed.
