SHESHAPPA Vs. STATE

JUDGEMENT

(1.) THIS appeal is preferred against the conviction and sentence passed by the addl. Sessions Judge, Adhoc-II, Kasaragod in S. C. 653/99. The accused was charge sheeted for an offence u/s 55 (a) of the Abkari Act and was found guilty and thereafter convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,00,000/- and in default to undergo rigorous imprisonment for a period of one year more. It is against that decision the present appeal is preferred by the accused.

(2.) HEARD the learned counsel for the appellant as well as the prosecutor. It is the case of the prosecution that on 8. 12. 98, very near the residence of one Madanan Master accused was found in a suspicious circumstance and on detection and search was found to be in possession of 50 packets of 100 ml. Karnataka made arrack and thereby the accused had committed the offence. In the trial court PWs. 1 to 3 were examined. Exts. P1 to P5 and MOs. 1 to 3 were marked. According to the evidence of PW1 while he was on patrol duty they found the accused under suspicious circumstance and later on detection and search found out 50 packets each containing 100 ml. Karnataka made illicit arrack. According to him sample was taken by opening three bags and the remaining 47 bags were separately packed and the sample as well as the other packets was sent to the Court on 9. 12. 1998. The learned counsel for the appellant had pointed out before me that even the forwarding note is prepared only on 4. 1. 99 which on perusal by him would show that it was received only in the Court on 6. 2. 99 and further the chemical examiners report would show that it had been received by the concerned only on 17. 2. 99. So the alleged liquor is seized on 8. 12. 98 which reaches the Court on 9. 12. 99, forwarding note is prepared on 4. 1. 1999 lab received it only on 17. 2. 99. The report is filed only in the Month of May, 1999. There is delay in all these processes. But all delays need not be fatal and therefore it is desirable that cogent evidence is given by the prosecution to explain the same for the reason all these are evidenced by documentary evidence. It is a settled position that if the Court, at any point of time, feels that an opportunity is there to tamper with the sample then certainly the benefit of the same should go to the accused. Unfortunately the evidence of pws. 1 to 3 as well as the judgment of the trial court does not give a clear picture of these materials. Therefore I feel the conviction and sentence has to be set aside and the matter has to be remitted back to the trial court again for fresh consideration with liberty to the prosecution as well as to the accused to produce further materials in support of their respective contentions and a direction is given to the Court below to dispose of the matter in accordance with law. In the result this Crl. A. is disposed of as follows.