Appukutty vs State Of Kerala

The accused having been convicted for the offence under Section 8(2) of the Abkari Act (for short, 'the Act') challenges his conviction and

sentence in SC.No.267/2005 on the files of the Additional Sessions Court (Fast Track Court No.III), Palakkad.

Prosecution case is that while the Excise Inspector was conducting patrol duty on 28.09.1998, they came across the accused walking through the

bund of the paddy field holding a plastic can. On inspecting the can, they found two litres of arrack. The accused was arrested and the can with the

arrack was seized. A sample was thereafter taken and after completing all procedures, a report was filed arraying the accused for the offence under

Section 8(1) & (2) of the Act along with Section 58 of the Act.

After committing the accused for trial to the Sessions Court, the prosecution examined PWs 1 to 5 and marked Exts.P1 to P7 apart from MO1.

After analysing the evidence adduced in the case, the learned Sessions Judge found the accused guilty for the offence under Section 8(2) while he

was acquitted under Section 58 of the Act.

Taking note of the age of the accused as 62 years in 2007, the learned Sessions Judge imposed a sentence of six months' rigorous imprisonment and to

pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for four months.

The learned counsel for the appellant Adv.K.R.Monisha assails the judgment of the Sessions Court and submits that the prosecution case does not

inspire confidence for more reasons than one. It was submitted that the sample sent for analysis showed that it contains certain sediments which

erodes the credibility of the sample that was sent for chemical analysis, especially since PW3 had stated that the bottle for taking the sample was

carried by him and whether the said bottle was clean or not was not shown to any of the witnesses nor recorded in the mahazar. According to the

learned counsel, the said fact alone is sufficient to doubt the prosecution case since without a proper sample taken, the very basis of the prosecution

case becomes shaky.

Adv.Rekha C.Nair, the learned Public Prosecutor on the other hand submits that all bottles of sample carried by the Excise Inspector or other

detecting officers are free from any spurious substances or any foreign ingredients. She submits that the presence of such sediments is not a reason to

throw away the prosecution case in its entirety.

I have considered the rival contentions. The presence of sediments in the sample sent for analysis is an admitted fact as is seen from Ext.P7

certificate of chemical analysis. No explanation is forthcoming as to how such sediments found its way into the sample sent for analysis. None of the

witnesses had spoken as to what are those sediments. The chemical analyst has also not been examined to prove the nature of the sediments that was

found in the sample bottle. In the light of the deposition of PW3 that he had carried the sample bottle along with him coupled with his evidence that he

had not shown the said sample bottle to any of the witnesses nor did he convince or record that the bottle is clean and free of any foreign substances,

there arises a doubt in the prosecution case. In an offence under Section 8(1) of the Act, the only material that can make an accused liable for

prosecution is the contraband article possessed, transported or sold. The presence of sediments in the sample analysed when appreciated in the light of

the evidence adduced creates a doubt in the nature of sample sent for analysis. This creates doubt on the prosecution story in the facts of this case.

Apart from the above, the accused is now aged 75 years and the contraband alleged to have been seized from him was only a minimal quantity of

two litres. Taking note of the over all circumstances arising in the case, including the age of the accused and the quantity involved, I am of the view

that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

In the aforesaid circumstances, I set aside the conviction and sentence imposed on the appellant by judgment dated 15.05.2007 in SC.No.267/2005 on

the files of the Additional Sessions Court (Fast Track Court No.III), Palakkad and allow this appeal. The bail bond executed by the accused shall

stand cancalled. The fine amount, if remitted shall be refunded and the accused is set at liberty.