Govind vs Authorised Officer, The Kerala State Co Operative Bank

Dr Kauser Edappagath, J

This appeal has been preferred by the appellants/accused Nos. 1 and 2 in S.C.No.1308/2006 on the files of the Additional District and Sessions Judge Fast Track (Adhoc-II) (for short the court below), challenging the judgment dated 2.4.2009 convicting and sentencing them under Section 8 of the Abkari Act.

The prosecution case in short is that on 9.1.2005 the accused were found manufacturing arrack in a shed situated on the back side of the house of the accused No.1 in Chathamangalam amsom and desom and 5 litres and 400 ml of arrack was seized from their possession, in contravention of the Abkari Act and Rules and thereby committed the offence.

To prove the case of the prosecution, PW1 to PW3 were examined and Exts. P1 to P8 were marked. MO1 series and MO2 were identified. The court below after trial found the accused guilty for the offence punishable under Section 8 of the Abkari Act and convicted and sentenced them to undergo rigorous imprisonment for 2 years and to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment for 6 months each. Challenging the said judgment, the accused have filed this appeal.

I have heard Sri. T.G. Rajendran, the learned counsel for the appellants and Smt. S. Rekha, the learned Senior Public Prosecutor.

The learned counsel for the appellants impeached the finding of guilt passed by the court below on two grounds. (1) Ext.P1 seizure mahazar does not contain seal or its description.

(2) No property list has been produced to prove the production of the contraband at the court.

The learned Public Prosecutor, on the other hand, supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt.

The first point canvassed by the learned counsel for the appellants is regarding the absence of sample seal in the seizure mahazar. This Court in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057) has held that the specimen seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P1 seizure mahazar would show that it does not contain the sample seal or the description of the seal used.

I have perused the records. The seizure was on 9.1.2005. No evidence has been produced by the prosecution to show the date of production of the contraband articles at the court. There is also no evidence to show where exactly the contraband articles were kept till those were produced at the court.

The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution case. For the reasons stated above, I am of the view that the conviction and sentence passed by the court below suffer from illegality and it cannot be sustained.

In the result, the criminal appeal stands allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellants are found not guilty of the offences charged against them and accordingly they are acquitted. Their bail bonds are cancelled.