VIJAYAMMA Vs. THE STATE OF KERALA

JUDGEMENT

(1.) The appellant herein challenges the conviction and sentence against her under Section 55(a) of the Kerala Abkari Act. She faced prosecution before the Court of Session, Thiruvananathapuram in S.C. No. 115 of 2000 on the allegation that on 2.2.1998 she was found possessing 3 litres of arrack in a plastic can. She was arrested by the Excise Inspector on the spot on detection, and the plastic can carried by her, containing arrack, was also seized as per mahazar. On the same day the properties was produced in court along with the Crime and Occurrence report. After comply with the procedure prescribed under the law, the learned Judicial First Class Magistrate III, Neyyattinkara committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge, Neyyattinkara. The accused pleaded not guilty to the charge framed against her under Section 55(a) of the Kerala Abkari Act. The prosecution examined 4 witnesses including the Excise Inspector who detected the offence, and also marked Exts. P1 to P5 documents and the MO1 plastic can, alleged to have been seized from the hands of the accused. When examined under Section 313 Cr.P.C. also, the accused denied the incriminating circumstances and maintained a stand of total denial. On an appreciation of the evidence given by the prosecution, the learned trial Judge found the accused guilty under Section 55(a) of the Kerala Abkari Act. On conviction thereunder she was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,00,000/- by judgment dated 1.9.2005. Aggrieved by the conviction and sentence the accused has come up in appeal.

(2.) The accused/appellant challenges the conviction on two legal grounds. One is that investigation was conducted by the very same officer who detected the offence, and he also made complaint before the court. The second ground is that the evidence adduced by the prosecution itself shows that the material object was definitely tampered with during the process. The dispute is regarding the identity of the plastic can seized from the hands of the accused. The definite contention raised by the accused is that MO1 produced in court is not the plastic can seized from her hands, and she also contends that there was clear tampering with the properties during the trial process.

(3.) Of course, PW3 the Excise Inspector and P.W. 1 the Preventive officer have given evidence regarding the process of detection including the arrest of the accused, and seizure of a plastic can. The dispute is not on these aspects. The accused is definite that MO1 produced in court is not in fact the plastic can seized from her hands. MO1 is a black plastic can of 5 litres capacity. But the lid of the can is white in colour. The prosecution has no explanation for this. It came out in evidence that during the trial process the sealed can produced in court was once opened by PW4. It is not known what was his authority to open a sealed can. In such a circumstance where there is definite evidence showing tampering with the property produced in court the evidence given by the detective officer regarding detection, or the chemical analysis report, will not in any manner help the prosecution.