MURUKESAN, S/O.KARUPPAN vs STATE OF KERALA

The appellant herein is aggrieved by the conviction

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

Abkari Act (for short "the Act ") in S.C 331 of 2010 of the of

the Court of Session, Palakkad. He faced prosecution on

the allegation that at about 6.30 a.m on 11.8.2007 at

Naripotta within the Kuzhalmannam Excise Range, he was

found possessing 10 litres of arrack contained in a plastic

can and carried in a big shopper. The offence was detected

by the Circle Inspector of Excise, Alathoor Circle. He

arrested the accused on the spot and seized the quantity of

arrack as per a mahazar. The Excise Circle Inspector

produced the accused and the properties before the Excise

Range Office where an Excise Inspector registered the

crime and occurrence report. Another Excise Inspector took

over investigation and submitted final report in court. On

committal, the case came up before the learned Additional

Sessions Judge( Adhoc) III, Palakkad 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 six

witnesses and proved Exts.P1 to P7 documents in the trial

court. The MO1 and 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 under Section 8 (2) of the Act. On

conviction, he was sentenced to undergo rigorous

imprisonment for three years, and to pay a fine of

1,00,000/- by judgment dated 25.1.2011. Aggrieved by the

said judgment of conviction, the accused has come up in

appeal.

When this appeal came up for hearing, the

learned counsel for the appellant submitted that there is

nothing to connect the accused with the properties involved

in this case or that the evidence will not in any manner help

the court to identify that MO1 is the plastic can containing

arrack, seized from the hands of the accused. The learned

counsel also submitted that there is no consistency as

regards the quantity of samples collected in this case. The

arguments advanced by the appellant is that when such

infirmities are there, the appellant is entitled for acquittal on

those grounds and so the factual aspects need not be

probed into

Of the six witnesses examined in the trial court,

PW1 is the Circle Inspector who detected the offence and

PW2 is the Preventive Officer who assisted him in the

process of detection. PW3 and PW4 are the independent

witnesses examined by the prosecution, but they turned

hostile during trial. PW5 is the Excise Inspector who

registered the crime and occurrence report and PW6 is the

Excise Inspector who investigated the case and submitted

final report. Of course as regards investigation or

registration of crime, there is no infirmity because the crime

was registered by a competent officer and investigation was

also done by a competent officer. PW1 and PW2 have given

evidence regarding the seizure of a plastic can from the

hands of the accused. Their evidence is that it was found

containing 10 litres of arrack. The evidence of PW1 is that  he had collected 200 ml of liquid in a bottle of 375 ml

capacity and it was well packed and sealed. The plastic can

containing the remaining quantity of arrack was also well

packed and sealed, and labels were also affixed on both the

properties to identify the properties. Everything was done at

the spot of detection itself.

On an appreciation of the evidence, I find that the

MO1 plastic can identified by PW1 and PW2 was found

empty during trial. No label was also found on the said

property during trial. In the detection mahazar and also in

evidence, PW1 is definite that 200 ml of liquid contained in

the MO1 plastic can was taken as sample in a bottle of 375

ml capacity. The chemical analysis report shows that the

sample received at the laboratory was found containing 300

ml of liquid. There is no explanation for this difference. Of

course, it is true that the specimen seal is there in the

mahazar and also in the forwarding note. Anyway, the

discrepancy regarding the actual quantity of sample stands

not explained by anybody in evidence.

There is clear evidence that no quantity of liquor

was seen in the MO1 plastic can during trial. There is

absolutely no explanation for this. Either the Detecting

Officer, or the officer who produced the properties in court,

or the Excise Inspector who investigated the case must have

explained in court as to what happened to the can or why

the can is now found empty. The witnesses are definite that

label containing the signature of the accused and the

witnesses was affixed on the sample as well as the plastic

can. But there is no such label now on the plastic can. This

means that the MO1 plastic can identified by the witness in

court cannot in any manner be identified as the can seized

from the hands of the accused. When there is discrepancy

regarding the quantity of sample, it is impossible to find that

the sample of 300 ml analyzed at the laboratory was taken

from the liquid contained in the MO1 plastic can. Thus I find

that the identity of the property involved in this case stands

not proved, that it was seized from the hands of the

accused. In the absence of any evidence to connect the

accused with the contraband articles involved in this case,

he cannot be convicted under Section 8(2) of the Act.

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 331/2010 of the

court below will stand set aside.