STATE Vs. GEORGE FERNANDIZ

JUDGEMENT

(1.) THIS is an appeal by the State from an order of acquittal in a case in which the accused was charged with an offence under S. 8 (1) of the Travancore - Cochin Prohibition Act (XIII of 1950 ). The case against the accused was that Pws. 1 and 2, the Flying Squad Excise Inspector and preventive Officer respectively of Trivandrum searched his room where they found a bottle containing 32 oz. of arrack there. They also discovered a glass tumbler containing a few drops of arrack. The learned Magistrate acquitted the accused holding that the testimony of Pws. 3 and 4 the attestors to the search mahazar did not support the prosecution case.

(2.) AFTER hearing both sides, I am not satisfied that compelling grounds warranting interference with the order of acquittal exist in this case. Though they had attested the mahazar regarding seizure of the arrack they deposed that arrack was found not inside the room but in a corner of the compound. The witnesses were not declared hostile by the prosecution. In view of their clear statements, no weight can be attached to answer of a general nature given by them that the mahazar was prepared correctly. In fact the evidence of these witnesses is fully consistent with the version of the defence witnesses whom the Magistrate disbelieved on the short ground that Pws. 1 and 2 had no motive in foisting a false case on the accused. On the facts, this is a case which is open to the criticism levelled against the prosecution in State v. Pappachan (1958 K. L. T. 966 ). The attestation of the mahazar by Pw. 2 fishmonger and Pw. 4 who is not a neighbour does not satisfy the requirements of law. In these circumstances, I confirm the acquittal of the accused and dismiss the appeal. Dismissed.