Vijayan, Snehalayam Veedu vs State of Kerala

Appeal filed u/s 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C."). Appellant challenges the conviction by the trial court imposed on him under Sections 8(1) and (2) and 55(a) of the Abkari Act (for short, "the Act"). Court below punished the appellant both under Sections 8(1) and (2) and Section 55(a) of the Act for imprisonment and fine. Correctness and legality of these convictions and sentence are challenged in this appeal.

Prosecution case, in short, is that on 12.08.1999 at about 1 p.m., while PW1 and his party was on patrol duty, sighted the appellant walking by the side of a road with a bottle wrapped in paper. On seeing the Excise Officers, he suddenly turned back and tried to escape. He was restrained and the packet possessed by him was examined. It was revealed that he possessed 750 ml. of arrack in the bottle. After arresting the accused and preparing the material records from the place of occurrence, crime was registered and follow-up action was taken.

At the time of trial, four witnesses were examined on the side of the prosecution. Exts. P1 to P6 and MO1 marked on the side of prosecution. DW1 was examined and Ext. D1 marked on the side of the defence.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

Learned counsel for the appellant contended that the court below did not properly appreciate the evidence in this case. According to him, the Detecting Officer and the Investigating Officer have committed serious irregularities and the benefit of the same should enure to the accused.

PW1 is the Detecting Officer. According to him, on 12.08.1999 at about 1 p.m., he found the accused walking with a packet in his hand. On examination, it was found that he possessed 750 ml. arrack. After arresting the accused, Ext. P1 mahazar was prepared. 300 ml. arrack was taken as sample in a bottle of 375 ml. volume. It was sealed from the place of occurrence. He would say that his personal seal with inscription ''G.K.'' was affixed on the bottle. This witness was cross-examined to establish that the accused was not arrested from the place of occurrence as alleged by the prosecution. Defence has a specific case that non-citing one Chellamma as a witness is fatal to the prosecution case, as the prosecution alleged that he was arrested in front of her house. Further, the defence contended that the road at the place of occurrence is not lying as stated by the prosecution. Prosecution has a case that the road runs in east-west direction. Whereas, the accused would contend that the road is in north-south direction at the alleged place of occurrence. PW2 also supported the version of PW1. Questions regarding direction of the road were asked to PW2 also. To show that the road at the place is lying in north-south direction, DW1 was examined and Ext. D1 location sketch was also produced. It appears that there is a mistake committed by the Detecting Officer in mentioning the direction of the road. However, that by itself may not be a reason to set aside the conviction.

Another important infirmity in the prosecution, according to the learned counsel for the appellant, is that the property was kept by the Investigating Officer for more than four days. PW4 is the Investigating Officer. He took over the investigation on the date of occurrence itself. According to him, the property was submitted in court only on 16.08.1999. Neither the evidence of PW4 nor any document is available to show that the contraband articles have been properly kept in the custody of PW4 till it is produced before the court. Ext. P4 is the property list. It is seen that the list of property was produced on 13.08.1999 itself. Further, admission of PW4 in cross-examination coupled with the endorsement of the learned Magistrate would show that the property was produced in court only on 16.08.1999. It is seen from Ext. P4 that the Property Clerk had made a submission for returning the material objects to the Excise Officers for want of space in the throne room of the court. However, whether any orders have been passed by the learned Magistrate and, if any orders had been passed, what is the date of the order is not evident from Ext. P4. Learned counsel for the appellant contended that this is a case in which no forwarding note is produced by the prosecution. It is not clear as to what is the sample seal sent along with the forwarding note to the chemical lab for identification as to see whether the seal was intact or not. All these infirmities have not been properly explained by the prosecution witnesses. As usual, the independent witnesses cited to prove the search and seizure have failed to support the prosecution case. Unexplained short-comings in the prosecution case will certainly shake the edifice of it. Therefore, I find that the appellant is entitled to be acquitted of all the charges.

In the result, the appeal is allowed. Conviction of the appellant under Sections 8(1) and 8(2) and Section 55(a) of the Abkari Act by the Additional Sessions Court (Adhoc), Mavelikkara in S.C. No. 134 of 2002 is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him.

All pending interlocutory applications will stand dismissed.