STATE OF KERALA Vs. NARAYANAN

JUDGEMENT

(1.) This appeal by the State is against an order of acquittal. There are four accused and the charge against them is that they were manufacturing illicit arrack in the kitchen of house No. T.C. 511 of the Chalai Ward. Accused 1 is said to be the owner of the house and in possession of it, accused 4 the Vaidian to whom a licence was granted for the manufacture of medicines and toilet preparations containing alcohol and accused 2 and 3 to be the employees of the Lalitha Pharmacy run by accused 1 and 4. Accused 1 asserted that the house did not belong to him and that he was permanently residing at Varkalai. Accused 3 denied having gone to the Vaidia Sala at all. Accused 2 denied that he was a servant in the pharmacy and stated that he had been there to see the Vaidian. Accused 4 stated that he was permanently residing at Chavarot and used to visit the Vaidia Sala only occasionally. He denied having had any knowledge of the alleged preparation of illicit arrack.

(2.) Pws. 1 and 2, Excise Officers who were among those conducted the search and effected the recovery of the arrack and wash were alone examined. No evidence was produced to prove that accused 1 had anything to do with the house and there is nothing to indicate that the distillation was done with the knowledge of accused 4 who was not admittedly living in the house. Pws. 1 and 2 gave evidence that they actually found accused 2 engaged in the work of distillation and accused 3 running out of the kitchen and escaping through the western door into the western lane. They have no case that they were previously acquainted with accused 3 and no identification parade was held. Dw. 1 is an advocate who was deputed to prepare a mahazar to note whether there was a lane to the west. His evidence and Ext. D-1 mahazar prepared by him prove that there is a granite wall 5 feet in height on the western side and there is neither a lane to the west of it nor any opening in the wall on the western side. There is the evidence of Pws. 1 & 2 that accused 2 was actually found in the act of distillation and he admits his presence in the Vaidia Sala.

(3.) The main grievance of the State Prosecutor is that the learned Magistrate was not justified in drawing an adverse inference from the non examination of the Assistant Excise Commissioner who headed the search party arid the independent attestors to the mahazar after having dismissed an application moved by the Prosecutor for summoning the Assistant Excise Commissioner and in the face of the prayer in the charge sheet that the search witnesses were to be summoned. It is true that a belated prayer was made by the prosecutor to have the Assistant Commissioner summoned which was disallowed for the same reason. There is also no good faith in the suggestion that the court failed to summon the other witnesses cited in the charge sheet when the prosecution did not deem it necessary to seek the aid of the court to get at them when they moved for summoning the Assistant Commissioner.