Prakasan vs State of Kerala

N.K. Balakrishnan, J.—This appeal is directed against the conviction and sentence passed against the appellant/accused for offence punishable under Sec. 55(b) of Abkari Act.

The allegation is that, on 17.3.1999 at about 8.30 AM, while PW1 and his subordinates were on patrol duty, a reliable information was received stating that the appellant was distilling illicit arrack in his house and accordingly, they proceeded to that spot. According to the prosecution, the wash and utensils intended for manufacturing of illicit arrack were kept on the oven and the accused was standing nearby. On examination, the liquid was found to be wash. There was 20 liters of wash in a 50 liter Aluminium vessel. Samples were taken in two sample bottles. The appellant was arrested then and there. All the contraband articles including the samples were seized as per the seizure mahazar. Crime report was prepared. Investigation was conducted by Addl. S.I. and the charge sheet was laid by PW6, the S.I. of Police. After the case was committed to the court of Sessions, it was made over to Asst. Sessions Court, Koyilandy. There, charge was framed against the accused for offence punishable under Sec. 55(b) of Abkari Act, in fact, the charge sheet was laid by the police under Sec. 55(g) of the Act. The case was ultimately tried by the Addl. Sessions Judge, Fast Track (Adhoc-II), Kozhikode.

PW1 to PW6 were examined and Exts.P1 to P9 were marked. MO1 to MO4 were also identified and marked. Learned Addl. Sessions Judge after scrutinising the evidence found the accused guilty, convicted and sentenced as mentioned above.

Learned counsel for the appellant submits that the conviction is unsustainable since no independent witness did support the prosecution. The material objects seized and produced by the police were not sufficient to have distillation and as such the offence under Sec. 55(b) of the Act is not attracted. It is also contended that there was delay in producing the properties before the court. The investigation was conducted by the subordinate of PW1 and on that ground also it has to be found that the investigation is illegal. The case was detected by the S.I. of Police who is an authorised officer. Similarly the charge sheet was laid by his successor i.e.; S.I. of Police who is also competent under the Act to lay the charge sheet. The fact that PW4 who conducted the investigation was only the Assistant of Inspector cannot in any way vitiate the charge or trial since, what is required by law is that the detection should be done by an authorised officer and the cognizance can be taken only on a report filed by an Abkari Officer who would include the S.I. of Police. Therefore, that is not a ground to upset the conviction.

Similarly, though it was vehemently argued by the learned counsel for the appellant that there was delay in production of the articles and so the conviction is vitiated, that also is found to be unacceptable. The seizure of the articles was reported on the same day. The seizure mahazar was produced before the court on the same day, i.e.; on 17.3.1999. The description of all the properties including that of the samples were mentioned in detail in Ext.P1 seizure mahazar. Those aspects were mentioned in the remand report - Ext.P4 also, which was filed by the police on 17.3.1999. The fact that the properties reached the court only on 23.3.1999, i.e.; after four days, will not in any way affect the case of the prosecution since the evidence would show that the samples were in tact when the samples reached the laboratory. The seal on each bottle was intact and found tallied with the sample seal provided. It was not seriously challenged also. The samples were found to contain 10.52 and 10.67% by volume of ethyl alcohol. Therefore, the evidence that there was 20 liters of wash in 50 liters of Aluminium vessel as alleged by the prosecution is seen to be true.

Learned counsel for the appellant would submit that in order to sustain charge under Sec. 55(b) of the Act, there must be acceptable evidence to show that the accused was actually found distilling illicit arrack. In other words, there must be evidence to show that actual distillation was being done. There is no case for the prosecution that it was actually in the process of distillation. It seems the wash was kept in a vessel above which a mud pot was kept. The side pipe was also fitted. Distillation was in fact not started. The fire wood and other materials which were required to prove the actual factum of distillation were not produced. No liquor, alleged to have been collected by illicit distillation, was also seen. So it is difficult to hold that the prosecution could prove the charge under Sec. 55(b) of the Act.

Learned Public Prosecutor would submit that if the court finds that conviction under Sec. 55(b) cannot be sustained, the case should be remanded to the trial court since there is evidence to hold that the accused was in possession of wash. Learned counsel for the appellant would submit that more than 12 years have elapsed and so the accused will be prejudiced by ordering remand. But it may be noted that the police officer had in fact laid the charge sheet under Sec. 55(g) of Abkari Act. It was the court which altered the charge to Sec. 55(b) without an alternative charge under Sec. 55(g) of the Act. Therefore, I find that the conviction is to be set aside and the case is to be remanded to the trial court.

In the result, this Crl. A. is allowed in part. The conviction and sentence passed against the appellant are set aside. The case is remanded to the trial court for fresh disposal; after altering the charge and also after affording opportunity to both sides to adduce evidence. The accused will appear before the learned Addl. Sessions Judge, Fast Track (Adhoc-II), Kozhike on 15.2.2012.