SARADA Vs. STATE OF KERALA

JUDGEMENT

(1.) Revision petitioner and another person were accused in C.C.321 of 1996 before Judicial First Class Magistrate, Vaikom for having committed offence punishable under Section 55(a) and (i) of the Abkari Act. The charge against the accused was that on 10.1.1996 at 11.25 am, they were found in possession of 2 litres of arrack and 30 litres of wash for manufacturing arrack in a temporary shed behind house No.VP 9/294 of Vaikom Panchayat. The Preventive Officer, Vaikom seized the article and registered a crime, after completing investigation, Excise C.I Vaikom laid charge report before Judicial First Class Magistrate, Vaikom.

(2.) To substantiate the allegation, prosecution examined PW1 to 5 and marked Ext.P1 to P4 as documentary evidence. MO1 to MO4 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning them under Section 313 Cr.P.C. They did not adduce any defence evidence. Learned Magistrate convicted the accused under Section 55(a) of the Abkari Act and acquitted them under Section 55(i) of the Abkari Act. Being aggrieved by that, they preferred Crl.A.537 of 2001 before Additional Sessions Judge, Kottayam where the conviction against the second accused was set aside.

(3.) The learned counsel appearing for the revision petitioner contended that search memorandum was not prepared by the Preventive Officer before conducting search in the alleged house. No evidence has been produced in the trial court to prove the possession and ownership of the property and the house. As per the seizure report, one sample was taken from wash, but in Ext.P4 chemical examination report, two bottles of sample were received in the laboratory. This create a doubt in the credibility of the seizure. The evidence of PW1 and PW4, who are the Preventive Officers, are inconsistent with each other. There is inordinate delay in producing the seized article before court. The totality of the evidence shows that the excise officials fabricated documents and foisted a false case.