SANKARAN, @ SIVASANKARAN AND ANR. Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred against the judgment of conviction and sentence in S.C.No.426/2006 on the files of Additional Sessions Judge, Fast Track (Adhoc-II), Thrissur. The conviction is under Section 55(g) of the Abkari Act. The sentence imposed was to undergo rigorous imprisonment for five years each and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh Only) each, in default simple imprisonment for two years and six months.

(2.) The facts of the case is as follows: On 28.09.2004, at about 5.20 PM, the police party found the appellants distilling arrack and when they approached, they escaped by jumping into the nearby river and swam to the other bank. The articles seized, sample collected and crime registered. After investigation, charge was filed against the appellants. The prosecution altogether examined six witnesses and Exts.P1 to P11 marked. MO1 to MO4 were also identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. Aggrieved by the above conviction and sentence, this appeal is preferred.

(3.) When the appeal came up for hearing, the learned Counsel for the appellants submitted before this Court that, here is a case where the prosecution failed to prove their case beyond reasonable doubt. Mainly, two points were raised by the learned Counsel before this Court. a. The identity of the appellants were not proved beyond reasonable doubt. To substantiate this contention, it is submitted by the learned Counsel that there is no case for the detecting officer that he had any prior acquittance with the appellants earlier to the date of detection of the crime. Admittedly, the names of the appellants were collected on enquiry and incorporated in the mahazar as well in the FIR. The persons who provided the names to the detecting officer was not examined. This is fatal to the prosecution. It is also relevant to note that there was no prior test identification parade conducted. Thus, the court identification is a weak piece of evidence and a conviction on the basis of such an identification is highly unsafe. b. The second argument advanced by the learned Counsel is that here is a very curious case where Ext.P4, having two pages got the signature of the Judicial officer with different dates. Surely, PW1 deposed before this court that property reached before the court on 04.10.2004. Thus, it can be seen that here is a typical case where the dictum laid down by this Court in Raju v. State of Kerala reported in 2012 KHC 877 is applicable. It is the submission of the learned Counsel that tampering cannot be ruled out especially when the contraband as such was not produced before the court as well as it is a specific case of the prosecution that it was destroyed from the spot. An explicit reliance on Ext.P4 cannot be therein to come to a conclusion regarding the alleged seizure. All the articles produced before the court except samples were common utensils and there is nothing specially designed.... to use for distillation of the arrack. Hence, the appellant is entitled for benefit of doubt.