State of Kerala vs Mary

Govinda Menon, J.—This is an appeal by the State against the order of acquittal passed by the Second Class Magistrate, Trivandrum. The offence with which the respondent was charged was for being in possession of 8 edangazhis of fermented wash fit for illicit distillation. The offence would, therefore, be one u/s 8 (1) (g) of the Travancore-Cochin Prohibition Act XIII of 1950 and not u/s 8 (1) (a) which applies only to possession of liquor. An offence u/s 8 (1) (g) is punishable with imprisonment which may extend to two years and is therefore triable only as a warrant case. Where a warrant case is tried as a summons case and the accused is acquitted, the order cannot be sustained. Hence the order of acquittal in this case is not in accordance with law. Even otherwise in a summons case when the accused pleads not guilty, the learned Magistrate ought to have proceeded u/s 244 Criminal Procedure Code by examining the witnesses. In this case as stated by the learned Magistrate himself, the witnesses were present, though Public Prosecutor was absent. The proper course would have been to examine the witnesses and then proceed with the case u/s 245 Criminal Procedure Code. The acquittal u/s 245 without examining the witnesses, who were actually present, is in any view unsustainable. The order of acquittal has therefore to be set aside.

In the result, the appeal is allowed. There will be a retrial according to law.