RADHAKRISHNAN P. Vs. THE STATE OF KERALA

JUDGEMENT

(1.) The appellant herein is the accused in S.C.No.14/2005 of the Court of Session, Wayanad. He faced prosecution before the learned Additional Sessions Judge (Adhoc)-II, Kalpetta under Section 58 of the Kerala Abkari Act (the Act) on the allegation that at about 5.30 p.m. on 19.1.2004, he was found possessing 9 litres of arrack. The offence was detected by the Sub Inspector of Police, Ambalavayal. On the basis of the arrest and seizure made by him, he registered the FIR on the same day. Later, investigation was taken over by the Sub Inspector of Police, Bathery, and the final report was submitted by the Sub Inspector of Police, Ambalavayal.

(2.) The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Section 58 of the Act. The prosecution examined seven witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 property was also identified during trial. The accused maintained a defence of total denial during trial, and also when examined under Section 313 Cr.P.C. He did not adduce any oral evidence, but proved Exts.D1 and D2 documents. On an appreciation of the evidence, the trial court found the accused guilty under Section 58 of the Act. On conviction, he was sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.1,00,000/-. Aggrieved by the said judgment of conviction dated 20.6.2006, the accused has come up in appeal.

(3.) On hearing both sides and on a perusal of the materials, I find that there is a very serious infirmity or illegality in this case, the benefit of which must go to the accused. PW1 is the Sub Inspector, who detected the offence, and PW2 is the Police Constable, who assisted him. These two witnesses have given evidence regarding the arrest of the accused, and seizure of a plastic can containing some liquid. PW6 and PW7 examined as attestors to the Ext.P1 seizure mahazar turned hostile during trial. PW3 is the Sub Inspector, who investigated the case. He was the Sub Inspector of Bathery at that time.