MUTHAN ANKAMUTHU Vs. STATE OF KERALA

JUDGEMENT

(1.) This Criminal Revision Petition by the accused, who has been convicted by the Additional First Class Magistrate, Peermade and sentenced to rigorous imprisonment for 6 months on each count under sub clauses (a) and (g) of S.55 of the Abkari Act is against the confirmation of the conviction and sentence by the Sessions Judge, Kottayam.

(2.) On 12-3-69 at about 1.30 p. m. Pw. 1 and Pw. 2, Preventive officers of the Excise department, on information received, visited the plantation where the petitioner was working as a labourer. They received, reliable news that the petitioner was conducting manufacture of illicit alcohol in a room of a lane which consisted of 6 rooms used as labour quarter. on that information, they prepared Ext. P2 search memo and thereafter they entered the room in which the petitioner lived. It was the 3rd room from the western side of the building. They found in that room 12 litres of wash in a mud pot, 3 litres of arrack kept in 4 bottles and also some articles described as copper vessel, mud pot, funnel and an aluminium pot, kept underneath a cot. They were seized by Pws. 1 and 2 under Ext. P3 search list and then they prepared Ext. P1 mahazar in respect of the scene of the offence. Pws. 3 and 4 affixed their signature to Exts. P1 and P3 to evidence the search and seizure of these articles. Pw. 1 thereafter laid the charge against the petitioner on 12-5-69.

(3.) The petitioner denied the charge levelled against him. The evidence of Pws. 1, 2 and 4 had been relied upon by the courts below to enter the conviction against the petitioner. Pw. 3, however, turned hostile to the prosecution. Anyhow, the evidence of Pws. 1, 2 and 4 established that the articles in question had been seized on the date of the incident. But, there is some discrepancy in the evidence of Pws. 1 and 4 with regard to the room out of which the articles were seized. Pw. 1 would have it that the seizure was from the third room from the eastern side of the building, while the evidence of Pw. 4, was that the seizure was from the third room from the western side of the building in which case the room was not identical. It is admitted that the building consisted of 6 rooms. The case of the petitioner was that he was living in the westernmost room of the lane. The rest of the rooms in the same lane had been occupied by the other labourers working in the plantation. None of them had been examined to prove that the articles were seized from the custody of the petitioner. Pw. 4 was a chance witness, who happened to follow the Preventive officers while they were proceeding to the plantation. He came to the plantation in search of some job. It is also significant to note that none of the articles seized under Exts. P1 and P3 had been produced in the court and identified by the witnesses. It is the duty of the prosecution to produce the contraband articles in court so that the witnesses were able to identify them as the same articles which were seized during the instant raid in the room of the petitioner. In the absence of any evidence as to the identity of the articles as well as the failure of the prosecution to prove as to which of the articles were found in the possession of the petitioner, it would be difficult to appreciate the prosecution version of the case. Anyhow, with regard to the article seized, there was no positive evidence that it contained any alcohol.