Padmanabha Shetty vs State of Kerala and Station House Officer

N.K. Balakrishnan, J.—The appellant was convicted by the Additional Sessions Judge (Ad Hoc) II, Kasaragod, for offence u/s 55 (a) of Abkari Act. He was sentenced to under go rigorous imprisonment for one year and to pay Rs. 1,00,000/- as fine.

The crime was alleged to have been detected on 4.9.1998 at 5.30 PM. The case of the prosecution is that when PW 2, Sub Inspector of Police, Manjeshwar, and his police party were on patrol duty, and when they reached Kaikkamba, the accused was found carrying plastic bag in his hand. Since he was found jittering, he was intercepted and examined. The plastic bag contained 24 bottles of 375ml each of Original Choice Whisky. The accused was arrested then and there. Exhibit P2 arrest memo was prepared. Out of the 24 bottles, two bottles were taken as sample. It was sealed and labeled in the presence of witnesses and the properties were seized as per Exhibit P3, seizure mahazar. After conducting investigation, the charge sheet was laid against the appellant.

PW1 and PW2 were examined and Exhibits P1 to P7 were marked. No material object was marked.

The learned Additional Sessions Judge accepted the evidence given by PW2, the Sub Inspector of Police, that the accused was carrying 24 bottles of 375 ml each of Original Choice Whisky and that this possession was unauthorized and was without any permit or license. Hence, he was convicted and sentenced as mentioned above.

The learned counsel for the appellant would submit that there are full of contradictions and improbabilities in the case put forward by the prosecution. PW1, the only other witness examined in this case turned hostile. No other witness was examined to corroborate the evidence given by PW2. The investigation was conducted and charge sheet was laid by PW2, the Sub Inspector of Police, himself. Hence, defence contends that serious prejudice was caused to the accused.

It is also contended that there is discrepancy in the description of the liquor bottles alleged to have been seized from the possession of the accused, in the property list and in the seizure mahazar. The properties were produced before the court below only on 10.9.1998, about five days after the detection. That apart, the liquor bottles which were produced before the learned Magistrate were returned to the very same officer for safe custody.

The seizure mahazar Exhibit P3 reached the Court only on 11.9.1998. It is submitted by the learned counsel for the appellant that the prosecution did not offer any explanation as to why the seizure mahazar, Exhibit P3 and the property seized were not produced before the learned Magistrate when the accused was produced.

The accused was produced before the learned Magistrate on 5.9.1998. PW2 has a duty to explain why the liquor bottles alleged to have been seized were not produced on 5.9.1998 when the accused was produced. Even if there was difficulty to produce those properties on 5.9.1998, there was no reason why seizure mahazar was not produced before the Court on 5.9.1998. Even the arrest memo reached the Court only on 11.9.1998. Exhibit P6 is the copy of the forwarding note. It seems the Chemical Analysis Certificate was submitted to the Court on 28.11.1998.

The learned counsel for the appellant would submit that in the property list and the seizure mahazar, item No. 1 was shown as 24 bottles of Original Choice Whisky of 375 ml each and item No. 2 was shown as two sample bottles of 375 ml taken from item No. 1. Therefore, according to the learned counsel, there should have been 26 bottles. But it is seen that it was only an incorrect expression since it is stated that two bottles of 375 ml each were taken out from item No. 1.

What ever that be, no explanation was given for the delay in the production of the property list and the seizure mahazar and why those documents were produced on two different dates. It is pertinent to note that though 22 bottles of 375 ml were returned to the officer for safe custody, that was not produced before the trial Court to identify the same. In this connection, it is also worthwhile to note that though PW2 says that on the material objects and on the sample bottles the labels containing the signatures of the police officer, the other witness and of the accused were affixed, those properties (whisky bottles) were not produced before the Court. No explanation was offered by the prosecution for not producing those whisky bottles even after that fact was brought to the notice of the prosecution.

It is not a case where the contents of the liquor bottles were destroyed. Those liquor bottles were returned to the officer for safe custody. In such circumstances, non production of those bottles may assume importance and may affect the case of the prosecution.

Exhibit P7 shows that the sample on examination contained 42.06 % by volume of ethyl alcohol. Since all the 24 bottles were stated to be uniform and identical it can be held that all those bottles contained ethyl alcohol of the strength mentioned above. Since the property was not produced it could not be proved by the prosecution that the liquor bottles, which were alleged to have been seized, were affixed with the seal containing the signatures of PW2, other witness and of the accused. In such circumstances the accused is to be given the benefit of reasonable doubt.

In the result this appeal is allowed. Conviction and sentence passed against the appellant are set aside and he is acquitted of the offence u/s 55(a) of Abkari Act. He is set at liberty. His bail bond will stand discharged.