PUSHPAN, S/O.SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (for short 'the Act') in S.C.No.647/2000 of the Court of Session, Thiruvananthapuram. He faced trial before the learned Additional Sessions Judge (Adhoc-IV), Thiruvananthapuram on the allegation that at about 5 p.m. on 25.1.1999 at Mudakkal within the limits of the Chirayankeezhu Excise Range, he was found possessing 5 litres of arrack in a plastic can. The offence was detected by the Circle Inspector of Excise, Attingal. He arrested the accused on the spot, and seized the contraband article as per a mahazar. When the accused and the properties were produced at the Excise Range Office, Chirayankeezhu, a preventive officer of the Range registered the crime and occurrence report, and he also produced the accused and the properties in court. The Excise Inspector took over investigation and submitted final report in court.

(2.) The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined five witnesses and proved Exts.P1 to P7 documents in the trial court. The accused denied the incriminating circumstances, and projected a defence of total denial. The MO1 property was also identified during trial. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. Aggrieved by the judgment of conviction dated 6.2.2006, the accused has come up in appeal.

(3.) On hearing both sides and on a perusal of the materials, I find some infirmities and illegalities in this case vitiating the prosecution. Of the five witnesses examined in the trial court, PW3 is the Excise Circle Inspector, who detected the offence, PW4 is the Preventive Officer, who registered the crime and occurrence report, and PW5 is the Excise Inspector, who completed investigation and submitted final report in court. PW1 and PW2 examined as independent attestors to the detection mahazar turned hostile. PW3 has given evidence regarding the arrest of the accused and the seizure of a plastic can. During trial, he identified MO1 as the plastic can seized by him. The crucial question is whether the liquid therein was identified as arrack as the prosecution would allege. Ext.P6 is the copy of the forwarding note produced in court by the Investigating Officer. This does not contain the specimen of any seal. PW3 has no case that he had taken any sample from the total quantity of liquid at the time of detection. A sample was sent for analysis from the court, but the Ext.P5 property list does not show that any sample was produced in court by the detecting officer or the Investigating Officer. It is not known how a sample happened to be sent for analysis. It is not known, who actually collected sample for analysis. PW3 does not say that he had collected sample on the spot, and there is nothing to show what seal was in fact affixed on the sample sent for analysis. In such a situation, the Ext.P7 report of analysis will not bind the accused.