Rajankunju vs State Of Kerala

The appellant was convicted for the offence under Section 55(a) of the Kerala Abkari Act and was sentenced to undergo rigorous imprisonment

for one year and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for three months by judgment dated 01.02.2006 in

SC.No.88/2004 on the files of the Additional Sessions Court (Ad hoc-II), Thodupuzha.

The prosecution case was that on 23.05.2002, the accused was found possessing 200 litres of arrack kept for sale and PW1, who was the Assistant

Sub Inspector of Police detected the offence, arrested the accused, seized the material objects and registered the crime. Subsequently, after the

completion of investigation, the final report was filed and the learned Magistrate committed the case for trial to the Sessions Court.

In order to prove the prosecution case, PWs 1 to 4 were examined and Exts.P1 to P6 were marked apart from MOs 1 and 2. The defence marked

Ext.D1. After analysing the evidence adduced, the learned Sessions Judge came to the conclusion that the accused had committed the offence and

thus found him guilty and imposed the sentence as stated above.

Assailing the impugned judgment, the appellant has preferred this appeal stating that the prosecution has miserably failed to prove the guilt of the

accused beyond reasonable doubt and that the appreciation by the learned Sessions Judge was completely erroneous.

I have heard the leaned counsel for the appellant Adv.Balu Tom as well as Adv.Smt.Maya M.N., the learned Public Prosecutor.

The learned counsel for the appellant points out that two crucial infirmities are there in the prosecution case and evidence due to which the benefit

of doubt ought to be given to the appellant. He further submits that one of the infirmities actually strike at the very root of the prosecution case itself

thereby rendering the case built up by the prosecution to be without any legs to stand.

Adv.Balu Tom submitted that the detection of crime and the registration was by the Assistant Sub Inspector, who was examined as PW1. He was

not an authorised officer under the Abkari Act to register a crime. Perusal of evidence of PW1 shows that it was he, who registered Crime

No.72/2002 since the Sub Inspector of Police was not in station. Even though a veiled attempt was made by PW1 to state that at the time he was in

charge as the Station House Officer, no records are seen produced to prove that PW1 was in charge as the Station House Officer. In the absence of

any reliable documentary evidence to prove that PW1 was acting as the Sub Inspector of Police, I find that the registration of the crime by the

Assistant Sub Inspector of Police was not permissible under the eye of law.

The learned counsel for the appellant also points out that even though the accused was arrested and the alleged contraband seized on 23.05.2002,

the same was produced before the court only on 18.06.2002, causing a delay of more than 26 days. This long delay of 26 days is not at all explained

by the prosecution and the same renders the prosecution case under doubt. The contraband was also retained by PW1 without any reason and no

explanation is forthcoming, which also creates doubt on the prosecution story.

In view of the aforesaid infirmities pointed by the learned counsel, to which this Court record its approval as infirmities striking at the very root of

the prosecution case, it cannot be said to have proved the guilt of the accused beyond reasonable doubt.

In the aforesaid circumstances, the conviction and sentence imposed upon the accused in S.C.No.88/2004 on the files of the Additional Sessions Judge

(Ad hoc-II), Thodupuzha by judgment dated 02.02.2006 is set aside and the accused is acquitted. The bail bond, if any, furnished shall stand cancelled

and the fine amount, if remitted, shall be refunded to the appellant.

The appeal is therefore allowed as above.