CHANDRABABU vs STATE OF KERALA

The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act ("the Act" for short) in S.C 224/2007 of the Court of Session, Pathanamthitta.

The prosecution case is that, at about 6.20 a.m on 11.08.2006 at Magaram, near Panthalam, the accused was found possessing 9 litres of arrack, contained in a plastic can of 10 litres capacity. The offence was detected by the Sub Inspector of Police, Panthalam. The accused was arrested on the spot by him and the plastic can containing arrack was seized as per a mahazar. The Sub Inspector produced the accused and the properties before the Police Station where he registered the F.I.R.

Investigation was taken over by another Sub Inspector, and he submitted final report also in court. After complying with the procedure prescribed under the law, the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc)-I, Pathanamthitta for trial and disposal.

The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 8(2) of the Act. The prosecution examined three witnesses in the trial court and proved Exts.P1 to P8 documents. The MO1 to MO2 properties were also identified during trial.

When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances. He did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for four years, and to pay a fine of 1,00,000/- by judgment dated 21.01.2011. The said judgment of conviction is under challenge in this appeal.

When this appeal came up for hearing, the learned counsel for the appellant submitted that there is absolutely no material to identify the contraband articles in this case or to connect the accused with the contraband articles. The learned counsel also submitted that on this ground itself, the accused is entitled for acquittal, and so the other factual aspects need not be probed into.

Of the three witnesses examined in the trial court, PW3 is the Sub Inspector, who detected the offence and registered the F.I.R. The other Sub Inspector who investigated the case was not examined by the prosecution.

There is no explanation for this. PW1 is the independent witness examined by the prosecution, but he turned hostile.

PW2 is the Police Constable who assisted the Sub Inspector in the process of detection. The Sub Inspector and also the Police Constable have given definite evidence proving the seizure of a plastic can from the hands of the accused as per the Ext.P1 seizure mahazar. But the material question is whether the liquid contained therein is arrack, and also whether the MO1 plastic can is in fact the plastic can seized from the hands of the accused. Both the witnesses are consistent that sample was taken from the total quantity of arrack, and it was well packed and sealed according to law.

But in evidence, PW3 stated that it is not known what seal was affixed on the sample or the plastic can. During trial, it was noticed that the MO1 plastic can does not contain any liquid now and its lid is black in colour. The seizure  mahazar shows that the lid was red in colour. During trial, no label or other identifying mark was noticed on the MO1 plastic can. The forwarding note does not contain the specimen seal, and the seizure mahazar also does not contain the specimen seal. An examination of the evidence given by PW1 shows that he is not in fact definite whether MO1 is the plastic can seized from the hands of the accused. In the absence of anything to identify the MO1 plastic can as one seized from the hands of the accused, it cannot be found that the accused was found possessing arrack, contained in the MO1 plastic can. In the above situation, the other factual aspects as regards arrest and seizure need not be discussed or probed into. Of course, the chemical analysis report shows that the sample analysed at the laboratory was identified as arrack. Even if it was taken from the MO1 plastic can which at that time contained some liquid, the accused cannot be made liable, because there is nothing to show that MO1 is the plastic can seized from him. During trial, the trial court noticed that the MO1 plastic can is empty. There is no explanation as to what happened to the liquid therein, and there is also no explanation why there is at present no label on the plastic can, to identify the property. In the above circumstances where the court cannot at all find that the MO1 is the plastic can seized from the hands of the accused, which contained arrack. Accordingly, it is found that the accused is entitled for acquittal on the said ground itself.

In the result, this appeal is allowed. Accordingly, the appellant is found not guilty of the offence under Section 8

(2) of the Kerala Abkari Act, and he is acquitted of the said offence in appeal, under Section 386 (b) (i) of Cr.P.C . The conviction and sentence against him in S.C 224/2007 of the court below is set aside. The appellant will stand released from prosecution and the bail bond, if any, executed by him will stand discharged.