CHANDRABABU vs STATE OF KERALA

The appellant herein challenges the conviction and

sentence against him under Section 8(2) of the Kerala

Abkari Act (''the Act'' for short) in S.C 224/2007 of the Court

of Session, Pathanamthitta.

The prosecution case is that, at about 6.20 a.m

on 11.08.2006 at Magaram, near Panthalam, the accused

was found possessing 9 litres of arrack, contained in a

plastic can of 10 litres capacity. The offence was detected

by the Sub Inspector of Police, Panthalam. The accused

was arrested on the spot by him and the plastic can

containing arrack was seized as per a mahazar. The Sub

Inspector produced the accused and the properties before

the Police Station where he registered the F.I.R.

Investigation was taken over by another Sub Inspector, and

he submitted final report also in court. After complying

with the procedure prescribed under the law, the learned

Magistrate committed the case to the Court of Session,

from where it was made over to the learned Additional

Sessions Judge (Adhoc)-I, Pathanamthitta for trial and

disposal.

The accused appeared before the trial court and

pleaded not guilty to the charge framed against him under

Section 8(2) of the Act. The prosecution examined three

witnesses in the trial court and proved Exts.P1 to P8

documents. The MO1 to MO2 properties were also

identified during trial.

When examined under Section 313 Cr.P.C, the

accused denied the incriminating circumstances. He 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 four years, and to pay

a fine of 1,00,000/- by judgment dated 21.01.2011. The

said judgment of conviction is under challenge in this

appeal.

When this appeal came up for hearing, the

learned counsel for the appellant submitted that there is

absolutely no material to identify the contraband articles in

this case or to connect the accused with the contraband

articles. The learned counsel also submitted that on this

ground itself, the accused is entitled for acquittal, and so the

other factual aspects need not be probed into.

Of the three witnesses examined in the trial

court, PW3 is the Sub Inspector, who detected the offence

and registered the F.I.R. The other Sub Inspector who

investigated the case was not examined by the prosecution.

There is no explanation for this. PW1 is the independent

witness examined by the prosecution, but he turned hostile.

PW2 is the Police Constable who assisted the Sub Inspector

in the process of detection. The Sub Inspector and also the

Police Constable have given definite evidence proving the

seizure of a plastic can from the hands of the accused as per

the Ext.P1 seizure mahazar. But the material question is

whether the liquid contained therein is arrack, and also

whether the MO1 plastic can is in fact the plastic can seized

from the hands of the accused. Both the witnesses are

consistent that sample was taken from the total quantity of

arrack, and it was well packed and sealed according to law.

But in evidence, PW3 stated that it is not known what seal

was affixed on the sample or the plastic can. During trial, it

was noticed that the MO1 plastic can does not contain any

liquid now and its lid is black in colour. The seizure  mahazar shows that the lid was red in colour. During trial,

no label or other identifying mark was noticed on the MO1

plastic can. The forwarding note does not contain the

specimen seal, and the seizure mahazar also does not

contain the specimen seal. An examination of the evidence

given by PW1 shows that he is not in fact definite whether

MO1 is the plastic can seized from the hands of the

accused. In the absence of anything to identify the MO1

plastic can as one seized from the hands of the accused, it

cannot be found that the accused was found possessing

arrack, contained in the MO1 plastic can. In the above

situation, the other factual aspects as regards arrest and

seizure need not be discussed or probed into. Of course, the

chemical analysis report shows that the sample analysed at

the laboratory was identified as arrack. Even if it was taken

from the MO1 plastic can which at that time contained

some liquid, the accused cannot be made liable, because

there is nothing to show that MO1 is the plastic can seized

from him. During trial, the trial court noticed that the MO1

plastic can is empty. There is no explanation as to what

happened to the liquid therein, and there is also no

explanation why there is at present no label on the plastic

can, to identify the property. In the above circumstances

where the court cannot at all find that the MO1 is the plastic

can seized from the hands of the accused, which contained

arrack. Accordingly, it is found that the accused is entitled

for acquittal on the said ground itself.

In the result, this appeal is allowed. Accordingly, the

appellant is found not guilty of the offence under Section 8

(2) of the Kerala Abkari Act, and he is acquitted of the said

offence in appeal, under Section 386 (b) (i) of Cr.P.C . The

conviction and sentence against him in S.C 224/2007 of the

court below is set aside. The appellant will stand released

from prosecution and the bail bond, if any, executed by him

will stand discharged.