MURUKESAN, S/O.KARUPPAN vs STATE OF KERALA

The appellant herein is aggrieved by the conviction and sentence against him under Section 8 (2) of the Kerala Abkari Act (for short "the Act ") in S.C 331 of 2010 of the of the Court of Session, Palakkad. He faced prosecution on the allegation that at about 6.30 a.m on 11.8.2007 at Naripotta within the Kuzhalmannam Excise Range, he was found possessing 10 litres of arrack contained in a plastic can and carried in a big shopper. The offence was detected by the Circle Inspector of Excise, Alathoor Circle. He arrested the accused on the spot and seized the quantity of arrack as per a mahazar. The Excise Circle Inspector produced the accused and the properties before the Excise Range Office where an Excise Inspector registered the crime and occurrence report. Another Excise Inspector took over investigation and submitted final report in court. On committal, the case came up before the learned Additional Sessions Judge( Adhoc) III, Palakkad 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 six witnesses and proved Exts.P1 to P7 documents in the trial

court. The MO1 and 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 under Section 8 (2) of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of 1,00,000/- by judgment dated 25.1.2011. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

When this appeal came up for hearing, the learned counsel for the appellant submitted that there is nothing to connect the accused with the properties involved in this case or that the evidence will not in any manner help the court to identify that MO1 is the plastic can containing arrack, seized from the hands of the accused. The learned counsel also submitted that there is no consistency as regards the quantity of samples collected in this case. The arguments advanced by the appellant is that when such infirmities are there, the appellant is entitled for acquittal on those grounds and so the factual aspects need not be probed into

Of the six witnesses examined in the trial court, PW1 is the Circle Inspector who detected the offence and PW2 is the Preventive Officer who assisted him in the process of detection. PW3 and PW4 are the independent witnesses examined by the prosecution, but they turned hostile during trial. PW5 is the Excise Inspector who registered the crime and occurrence report and PW6 is the Excise Inspector who investigated the case and submitted final report. Of course as regards investigation or registration of crime, there is no infirmity because the crime was registered by a competent officer and investigation was also done by a competent officer. PW1 and PW2 have given evidence regarding the seizure of a plastic can from the hands of the accused. Their evidence is that it was found containing 10 litres of arrack. The evidence of PW1 is that  he had collected 200 ml of liquid in a bottle of 375 ml capacity and it was well packed and sealed. The plastic can containing the remaining quantity of arrack was also well packed and sealed, and labels were also affixed on both the properties to identify the properties. Everything was done at the spot of detection itself.

On an appreciation of the evidence, I find that the MO1 plastic can identified by PW1 and PW2 was found empty during trial. No label was also found on the said property during trial. In the detection mahazar and also in evidence, PW1 is definite that 200 ml of liquid contained in the MO1 plastic can was taken as sample in a bottle of 375 ml capacity. The chemical analysis report shows that the sample received at the laboratory was found containing 300 ml of liquid. There is no explanation for this difference. Of course, it is true that the specimen seal is there in the mahazar and also in the forwarding note. Anyway, the discrepancy regarding the actual quantity of sample stands not explained by anybody in evidence.

There is clear evidence that no quantity of liquor was seen in the MO1 plastic can during trial. There is absolutely no explanation for this. Either the Detecting Officer, or the officer who produced the properties in court, or the Excise Inspector who investigated the case must have explained in court as to what happened to the can or why the can is now found empty. The witnesses are definite that label containing the signature of the accused and the witnesses was affixed on the sample as well as the plastic

can. But there is no such label now on the plastic can. This means that the MO1 plastic can identified by the witness in court cannot in any manner be identified as the can seized from the hands of the accused. When there is discrepancy regarding the quantity of sample, it is impossible to find that the sample of 300 ml analyzed at the laboratory was taken from the liquid contained in the MO1 plastic can. Thus I find that the identity of the property involved in this case stands not proved, that it was seized from the hands of the accused. In the absence of any evidence to connect the accused with the contraband articles involved in this case, he cannot be convicted under Section 8(2) of the Act.

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 331/2010 of the court below will stand set aside.