G. Santharam Hegde vs State of Kerala

P.S. Gopinathan, J.—The appellant was prosecuted by the Station House Officer, Adhur Police Station, who was examined as PW2, alleging offence u/s 55(a) of the Abkari Act with a plea that at 8 P.M on 25.5.1999, while PW2 moving on patrol duty along with police party, he found the appellant carrying 108 packets, each packet containing 100 ml of arrack near his house. The appellant was arrested. The contraband was seized. Returning to the police station, a case as Crime No. 71 of 1999 was registered against the appellant. Ext.P2 is the seizure mahazar and Ext.P3 is the First Information Report. After completing the investigation, PW2 submitted the charge sheet before the Judicial Magistrate of the First Class, Kasaragod. On finding that the offence alleged is exclusively triable by a Court of Session, the learned Magistrate committed the case to the Court of Session. From there it was made over to the Additional Sessions Judge (Adhoc I), Kasaragod. In response to the process issued, the appellant entered appearance before the Additional Sessions Judge. When the charge was framed, read over and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, Pws.1 and 2 were examined. Exts.P1 to P5 and Mos.1 to 3 were marked. When questioned u/s 313 of the Code of Criminal Procedure, the appellant took a defence of total denial. No defence evidence was adduced. The learned Additional Sessions Judge on appraisal of evidence arrived at a finding of guilty. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for three years and a fine of rupees one lakh with a default sentence of rigorous imprisonment for six months. Assailing the above conviction and sentence, this appeal is preferred.

I have heard Advocate Sri. Kodoth Pushparajan, the learned counsel appearing for the appellant and Smt. Lowsy, the learned Government Pleader. Perused the judgment impugned as well as the records. PW1 is only an attester to Ext.P1 scene mahazar. The remaining sole evidence is that of PW2, who is the detecting as well as the investigating officer. PW2 had given evidence in support of the prosecution case. The trial court believed the evidence of PW2. The learned counsel for the appellant would argue that the evidence of PW1 coupled with Ext.P2 seizure mahazar would show that samples were taken in two bottles of 375 ml capacity. After producing a copy of the property list, the learned counsel would submit that the properties were produced before the court only on 31.5.1999 and that the sample bottles produced were of 350 ml capacity. Therefore, according to the learned counsel, there is a chance for mistaken identity of the sample bottle. Going by the evidence, I find merit in the submission and I am not in a position to rule out the possibility. A copy of the property list prepared at the office of the committal court was also forwarded to the trial court. There also, the capacity of the sample bottle is shown as 350 ml. The prosecution has no explanation. Though PW2 would depose that the delay of five days in producing the sample before the court was because of the rush in the office, there is no whisper in his evidence that samples were in safe custody till produced before the court. He has also no explanation as to how the discrepancy arose between the seizure mahazar and the property list regarding the capacity of the bottles in which the samples were taken. Since there is only the evidence of PW2, his evidence is to be critically scrutinized. Doing so, I find it is not safe to rely upon his solitary evidence because of the discrepancies. Not only that PW2 is the detecting and investigating officer. In such circumstance, the discrepancies mentioned earlier cannot be brushed aside. I find that the benefit of doubt can be given to the appellant. He is entitled an order of acquittal.

In the result, this appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. The fine amount, if any, realised shall be refunded.