AJEESH (DIED) Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein is the 2nd accused in S.C. No.458/2008 of the Court of Session, Pathanamthitta. Of the three accused in the case, the 1st accused absconded, and the accused Nos.2 and 3 faced trial before the learned Additional Sessions Judge (Adhoc)-III, Pathanamthitta under Section 8(2) of the Kerala Abkari Act (the Act), on the allegation that at about 9 a.m. on 7.10.2007, the accused Nos.1 and 2 were found transporting huge quantity of arrack in the autorickshaw No.KL-3/Q-1738 driven by the 1st accused, and they transported the quantity of arrack on behalf of the 3rd accused. The offence was detected by the Sub Inspector of Police, Perinad. He arrested the accused Nos.1 and 2 on the spot, and seized the contraband N as per a mahazar. On the basis of the arrest and seizure, the Sub Inspector registered the crime, he investigated the case, and also submitted final report in court.

(2.) The accused Nos.2 and 3 appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined five witnesses, and proved Exts.P1 to P9 documents in the trial court. The MO1 to MO3 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and they projected a defence of total denial. They did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the 3rd accused not guilty of the offence, and accordingly, he was acquitted. But, the 2nd accused was found guilty. On conviction, he was sentenced to undergo rigorous imprisonment for 3- 1/2 years, and to pay a fine of Rs.1,00,000/-. Aggrieved by the judgment of conviction dated 17.4.2010, the 2nd accused has come up in appeal. Pending the appeal, the appellant died, and the mother of the appellant was granted permission to prosecute the appeal.

(3.) On hearing both sides, and on a perusal of the materials, I find some serious illegalities and infirmities in this case, the benefit of which must go to the accused. Of the five witnesses examined in the trial court, PW5 is the Sub Inspector, who detected the offence, and PW4 is the Assistant Sub Inspector, who assisted him in the process of detection. PW3 is the court staff, who received the properties at the court, and made entries in the property register. He proved the Ext.P2 extract of the property register. PW1 and PW2 examined as attestors to the mahazar did not support the prosecution. PW4 and PW5 have given evidence regarding the arrest of the accused, and the seizure of five plastic cans allegedly containing arrack. PW5 claims to have taken sample from each of the cans, and accordingly five sample bottles were produced in court. The detection was made on 7.10.2007, and the properties were produced on the next day itself. The evidence given by PW3 shows that the samples were sent for analysis only on 23.1.2008. There is no explanation for this delay. It is not known, whether the delay occurred at the court, or because the forwarding note was not filed in time by the Sub Inspector.