Matha vs The Excise Inspector and The State of Kerala

B. Kemal Pasha, J.—The accused in S.C. No. 495/2002 Additional Sessions Court (Adhoc-II), Kozhikode, who stands convicted u/s 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for 1= years and to pay a fine of 1 lakh, in default, to undergo simple imprisonment for six more months, has come up in appeal. The prosecution case is that, on 23.12.2000 at 12.30 p.m., the appellant was found in possession of 1.5 litre of illicit arrack in a 1.5 litre plastic bottle, contained in a plastic bag. The case was allegedly detected by the Excise Inspector and party attached to the Quilandy Excise Range. The contraband was seized through Ext. P2 mahazar. The sample was drawn. As no women police constables were available, the appellant was not placed under arrest.

On detection of the crime by the Excise party under the leadership of one Additional Tahsildar, PW 3 Excise Inspector registered Ext. P4 occurrence report. The contraband was produced before court through Ext. P5 property list. A forwarding note was filed for sending the sample for chemical analysis. Ext. P6 is the copy of the forwarding note. On obtaining Ext. P7 certificate of chemical analysis, one R. Mohanan, the successor in office to PW 3, filed the complaint.

On the side of the prosecution, PWs 1 to 4 were examined and Exts. P1 to P8 were marked. MOs 1 and 2 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable u/s 58 of the Abkari Act, convicted her thereunder and sentenced her as aforesaid.

Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant has argued that there is no sufficient evidence to connect the appellant with the crime, and that the evidence of PWs 3 and 4 relating to the contraband are clearly contradictory. It is also alleged that there was inordinate delay in producing the contraband and the sample before Court. It is further argued that even when the evidence of the only two supporting occurrence witnesses, PWs 3 and 4, are contradictory, the prosecution had given up the Additional Tahsildar, who was also allegedly present with the patrolling party.

As rightly pointed out by the learned counsel for the appellant, the version of PW 3 regarding the contraband is that it was 1= litre of arrack in a plastic bottle. At the same time, according to PW 4, who was the Preventive Officer of Excise Range, Quilandy, the appellant was found in possession of a bag containing a plastic bottle having capacity of 1 litre, in which 1 litre of arrack was found. The said version was given by PW 4 in his chief examination. Even then, there was no attempt from the part of the prosecution to explain the contradiction regarding the quantity of the contraband involved in this case. When the versions of two witnesses relating to the quantity of the contraband were contradictory, the prosecution could have examined the Additional Tahsildar, who was allegedly present along with the patrolling party. Instead of examining him, he was given up by the prosecution, thereby suppressing better evidence. Even though the alleged seizure was on 23.12.2000, the contraband was produced before court on 28.12.2000 only. Even though the forwarding note was allegedly prepared on 23.12.2000, the same reached the court only on 11.01.2001. It seems that the said delay has not been properly explained. All the aforesaid aspects cause serious doubts in the prosecution case. Of course, the appellant is entitled to the benefit of such doubts. Matters being so, I am of the view that there is no sufficient evidence to connect the appellant with the crime and, therefore, the appellant is entitled to be acquitted.

In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is acquitted. Her bail bonds shall stand cancelled and she is set at liberty forthwith. The part of the fine amount, if deposited, shall be returned to the appellant.