Nirmalan vs State of Kerala

A. Hariprasad, J.—The appellant was tried and convicted by the learned Additional Sessions Judge for offences punishable under sections 55(a) and (i) of Abkari Act.

It is alleged that on 29.04.1998 at 9.30 pm the appellant was found in possession of about 1.5 litres of illicit arrack in 15 covers, each containing 100 ml. He was selling the same from the coconut garden belonging to one Sudhakaran. P.W. 5 and party detected the offence. After completing all the formalities, the accused was arrested.

The lower court examined five witnesses on the side of the prosecution and marked four documents. M.O. 1 is the plastic cover, wherein P.W. 5 alleged that he put the cover containing illicit arrack.

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

Learned counsel for the appellant submitted that going by the prosecution evidence, it can be seen that the conviction of the appellant is not maintainable. According to the learned counsel, the glaring incongruity in the evidence of P.Ws. 4 and 5 were not considered by the Court below. In addition to that, material documents like forwarding note, requisition etc were not produced to show that the contraband allegedly recovered from the accused was forwarded to chemical lab.

P.Ws. 1 and 2 are the independent witnesses cited to prove the search and seizure of the contraband from the possession of the accused. They turned hostile to the prosecution. In spite of cross examination no tangible reason could be brought out to hold that they were lying to unduly support the accused. P.W. 3 was the Police Constable attached to Anchalummoodu Police Station. He accompanied P.W. 5 at the time of detection of the offence. It is his case that on 29.04.1998, while they were conducting night patrol duty they reached at about 9.25 pm at a place called Chanthanakkadavu. Then P.W. 5 got information that the accused was vending illicit liquor from a coconut garden. They went to the place and found the accused standing with a plastic carry bag in his hand. He attempted to flee from the place on seeing the Police Officers. He was restrained and the bag possessed by him was examined. P.W. 5 found 15 packets of liquor in his possession. One packet was opened and the contents were examined. It was found that the packet was containing illicit arrack. Another packet was also opened and 350 ml sample was taken. It was properly seized and labelled. Thereafter, on physical verification it was found that the accused was possessing Rs. 230/-, alleged to be the sale price of the contraband.

Ext. P1 mahazar was prepared from the place of occurrence. Thereafter, the accused and contraband were taken to the Police Station and on the next day to the Court. This witness was cross examined by the learned defence counsel. It is mentioned by this witness that 13 packets of illicit arrack was put in a red cover and it was sealed from the place of occurrence. P.W. 5 is the detecting officer. His testimony regarding the detection is in harmony with that of P.W. 3. He proved preparation of Ext. P3 F.I.R. and Ext. P4 property list. Ext. P2 is the chemical analysis report. Both these witnesses and P.W. 4 deposed that the latter officer completed investigation and filed the final report. P.W. 5 disowned the seal seen on M.O. 1 plastic cover in a black cover.

The learned trial Judge recorded in the deposition of P.W. 5 that the seal was unidentifiable and found to be a new one. When it was removed and the black cover was opened, they fond another black cover without any seal. According to the testimony of P.W. 5, even in chief examination, these covers were not used by him for sealing the contraband. Apart from that P.W. 5 admitted that their detection was on 29.4.1998 and the contraband was produced before the Court as per Ext. P4 only on 4.5.1998. There is no explanation as to where the contraband was kept for five days and who was in custody of the article. To crown all these things, there is no forwarding note or requisition produced and marked at the time of trial to show the identity of the contraband.

It is settled law in Sasidharan K.K. and Others Vs. State of Kerala and Another, that unless identity of the sample, which reached the chemical examination lab, is established to be that recovered from the accused, no conviction under the Act can be sustained. In the absence of complete lack of evidence on these aspects, I find that conviction of the appellant by the court below for the said offences is legally unsustainable. Hence appeal is to be allowed.

In the result, this Criminal Appeal is allowed. Conviction of the appellant under section 55(a) and (i) of Abkari Act in S.C. 201/1999 of Additional Sessions Court-I, Kollam, is set aside. The appellant shall be set free forthwith if not wanted in any other case.