RAJU AUGUSTINE Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred against the judgment of conviction and sentence in SC 90/2008 on the files of the Sessions Court, Kottayam Division. The conviction is under Section 55 (i) of the Abkari Act and the sentence is to undergo simple imprisonment for one year and to pay a fine of Rs. 1 lakh with default simple imprisonment for 3 months.

(2.) The facts necessary for consideration of this appeal is as follows:

(3.) When the appeal came up for hearing, the learned counsel appearing for the appellant vehemently argued before this court that here is a case where prosecution miserably failed to establish their case beyond reasonable doubt. For argument sake, even if the seizure is believed, as per the prosecution case itself a contemporaneous mahazar was prepared in respect of seizure and sampling. As per the said mahazar from the seized articles sampling was done and special marking was given as S1 to S3. Even though the prosecution got a case that the above said contraband as well as the articles were forwarded to the court, no property list was produced or marked so as to establish what was actually forwarded to the court. Surely the property clerk was examined. But it is relevant to note that the extract of thondi register was not marked in this case. The oral evidence of the thondi clerk cannot be the basis of a conviction when the original entries are not before the court. It is the submission of the learned counsel that even though SI to S3 were the marking given on the sample, it can be seen that the analyst got bottles having marking of SI and S4. This will not go together. It is the bounden duty of the prosecution to explain before the court how this discrepancy occurred. When such a discrepancy is therein, it is an indication of tampering. When tampering cannot be ruled out, the appellant is entitled for benefit of doubt.