VIJAYAKUMARI @ VELLACHI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in S.C.No.372 of 2000 of the Additional Sessions Court (Adhoc-I), Thiruvananthapuram, who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for six months, has come up in appeal. A2 has been acquitted.

(2.) THE prosecution case is that A2 used to supply arrack for sales to the present appellant. On 22.11.1998, PW4, the Sub Inspector of Police, Poonthura and party including PW2, Woman Police Constable reached near the house of the appellant at 3.40 p.m. They could find the appellant standing at the courtyard of her house by holding MO2 glass tumbler in one of her hands and by holding MO1 can by her other hand. Seeing the police party, the appellant dropped MOs 1 and 2 and attempted to run away. She was intercepted by PW2. On examination of the can, it was found containing 2= litres of arrack and thereby the appellant was placed under arrest. The contraband was seized through Exhibit P1 mahazar. PW4 took the appellant and the material objects to the Poonthura Police Station and registered Crime No.195 of 1998 though Exhibit P2 First Information Report. The appellant was produced before court through remand application. After chemical analysis, Exhibit P3 certificate showing the presence of Ethyl Alcohol was received. As per Exhibit P3, the sample of liquor contained 28.19% by volume of Ethyl Alcohol. The investigation revealed that it was A2, who supplied arrack to the appellant and thereby Exhibit P4 report was furnished before court and he was arrested on 21.12.1998. Section 34 of the Indian Penal Code was also incorporated through Exhibit P5 report. PW3, who was the successor in office to PW4, verified the records and filed the final report.

(3.) HEARD the learned counsel for the appellant and the learned Public Prosecutor. On going through the evidence of PW4, It could be seen that he has not drawn any sample from the contraband at the scene of occurrence. He has not stated in evidence as to the quantity of the contents of contraband in MO1 can, when he allegedly detected the crime. According to him, he gave report to the court to draw samples and to forward it to the chemical analysis laboratory for analysis, which is quite unheard off. There is no evidence to show as to how much quantity of contraband was drawn as sample for subjecting it to chemical analysis. There is no evidence as to who has drawn the said sample and when it was forwarded to the chemical analysis laboratory. Above all, there is no evidence as to when the contraband was produced before court. Any requisition or forwarding note has not been produced and marked. Any property list showing the production of the contraband before court has not be produced or marked.