CHENNAPOYIL KUNKAN AND ANR. Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred against the judgment of conviction and sentence in S.C.No. 43/03 on the files of the Additional Sessions Judge, (ADHOC-II), Thalassery. Conviction is under Section 8(2) of the Abkari Act and is sentenced to undergo imprisonment for one year and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh only), with a default of simple imprisonment for three months.

(2.) When the appeal came up for hearing, the learned Counsel for the appellant submitted before this Court that here is a case where prosecution failed to prove the offence by reliable evidence. It is the submission of the learned Counsel that as per the original prosecution case, the appellants herein were seen transferring arrack from one can to another can from a place about 15mts behind a ration shop. But when the appellants where called on to face the trial, the charge framed was that they were seen at a place called "colony". There is nothing to show that the ration shop allegedly shown in the mahazar was anywhere near a colony or inside a colony. When the allegation in the charge is different from other materials provided to the appellant herein, it can be only said that such a charge caused prejudice to the appellants in their defense.

(3.) The next aspect highlighted by the Counsel for the appellant is that in this case, even though the prosecution case is that the appellant were seen transferring arrack from one can to another, it can be seen that the chemical analysis report will belie the said version. The sample allegedly taken from the two cans contained different value of Ethyl Alcohol. This will go to the root of the case.