1. The concurrent findings of the Assistant Sessions Court, Karunagappally, and the Additional Sessions Court-III, Kollam, in S.C.No.390/2010 and Crl.A.No.173/2016, respectively, convicting and sentencing the petitioner for the commission of offence under Sections 8(1) & 8(2) of the Abkari Act, are under challenge in this revision.

2. The prosecution case is that on 22.05.2008, at about 07:30 a.m., the petitioner was found to have been in possession of two litres of arrack in a plastic bottle of two litres capacity, by the side of a public road. The Excise Inspector of Excise Circle Office, Karunagappally, is said to have detected the offence and arrested the petitioner on the spot with the contraband item. Sample is also said to have been collected then and there. On report of the matter to the Excise Range Office, Karunagappally, the investigation was carried out by the Excise Inspector of Excise Range Office, Karunagappally, who filed the final report before the Jurisdictional Magistrate.

3. In the trial before the learned Assistant Sessions Judge, five witnesses were examined as PW1 to PW5 on the part of the prosecution, and eight documents were brought on record as Exts P1 to P8. After analysing the above evidence, the learned Assistant Sessions Judge found the petitioner guilty of the offence under Sections 8(1) & 8(2) of the Abkari Act and convicted him thereunder. He was sentenced to undergo simple imprisonment for three months, and to pay a fine of Rs.1,00,000/- with a default clause of simple imprisonment for 30 days. Though the petitioner challenged the above verdict of the Trial Court in appeal, the learned Additional Sessions Judge-III, Kollam, who considered the appeal, refused to interfere with the findings of the Trial Court. Accordingly, the appeal was dismissed, confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision.

4. As there was consecutive non-representation on the part of the petitioner, despite notice having been issued from the Registry intimating the posting date of the case, Adv. Sri. Shan V. Shine was appointed as Amicus Curiae to represent the revision petitioner.

5. Heard the learned Amicus Curiae representing the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

6. As already stated above, the prosecution case relates to the seizure of a plastic bottle containing two litres of arrack from the possession of the petitioner on 22.05.2008 by the Excise Inspector of Excise Range Circle, Karunagappally and his team, who were on patrol duty. Among the five witnesses examined from the part of the prosecution, PW2, the independent witness turned hostile, and discredited the prosecution story. PW1 is the Excise Inspector, who is said to have detected the offence, arrested the accused and seized the contraband item from the accused. It is PW1 who is said to have collected samples from the contraband item at the time of detection of the offence. Though it is stated in Ext P3 mahazar prepared by PW1 that the sample bottle was secured with the seal impression shown in that mahazar, the procedures adopted by the above Officer while sealing the bottle are not narrated in the aforesaid mahazar. The above sample bottle is said to have been produced before the Judicial First Class Magistrate Court, Karunagappally, on the same day when the offence was detected. However, there is absolutely no evidence to show that the sample bottle was received at the office of the Judicial First Class Magistrate Court, Karunagappally, after verifying and getting satisfied about the condition of the seal as intact. The staff of the above Court, who is said to have received the sample bottle, has not been examined as a witness from the part of the prosecution. Thus, it is not possible to conclude on the basis of the available evidence that the sample bottle was transmitted to the Court and received there in a tamper-proof condition. Likewise, there is absence of evidence to show that the sample was sent to the Chemical Examiner’s Laboratory, in a tamper-proof condition from the Judicial First Class Magistrate Court, Karunagappally. The above aspect also could have been brought in evidence by the examination of the staff concerned, who despatched the sample bottle to the Chemical Lab. It is not possible to discern from Ext P6 forwarding note as to whether the sample bottle was packed again at the office of the Judicial First Class Magistrate Court and secured with the seal of that Court. In the above circumstances, it has to be stated that the essential requirement of sending the sample to the Chemical Examiner’s Laboratory in a tamper-proof condition could not be established by the prosecution.

7. The remaining arrack contained in the plastic bottle said to have been seized from the petitioner is said to have been disposed of under the provisions contained in Section 53A of the Abkari Act. Ext P8 is the inventory report relied on by the prosecution to establish the disposal of the remaining contraband item. Though Ext P8 is attached with a certificate of inventory of the Magistrate concerned, there is absolutely no indication in the above said certificate that the learned Magistrate had verified and cross checked the seal impression in the bottle with any specimen seal provided by the investigating agency. In the absence of indications in the above regard, Ext P8 inventory report and the records appended to it are of no help for the prosecution in establishing the charge levelled against the petitioner. As a conclusion to the above discussion, I find that the prosecution has failed to establish the allegation that the petitioner was found to have been in possession of two litres of arrack on 22.05.2008 at the time of patrol duty of PW1. Since the courts below ignored the above aspect which is of vital importance in the appreciation of evidence, it is well within the ambit of power of this Court to interfere with the aforesaid findings in revision. Needless to say, the concurrent verdicts of the courts below are liable to be set aside.

                  In the result, the revision petition stands allowed. The judgments rendered by the Assistant Sessions Court, Karunagappally, and Additional Sessions Court, Kollam, in S.C.No.390/2010 & Crl.A.No.173/2016, respectively, convicting and sentencing the petitioner for the commission of offence under Sections 8(1) & 8(2) of the Abkari Act, are hereby set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted thereunder. The bail bond executed by the petitioner/accused stands canceled and he is set at liberty.

                  This Court places on record its appreciation for the assistance rendered by the learned Amicus Curiae Adv. Sri. Shan V. Shine in addressing the various legal aspects on this matter.