Appeal against conviction under Section 8(2) of the Kerala Abkari Act for possessing arrack. The High Court allowed the appeal, acquitting the appellant because the prosecution failed to prove the liquid was arrack due to missing specimen seal on the sample.
Appellant acquitted; conviction and sentence set aside; accused released and bailed bond discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 22ND DAY OF JANUARY 2019/2ND MAGHA, 1940
CRL.A.No.1230 of 2005
JUDGMENT IN SC 424/2003 of ADDL.SESSIONS COURT (ADHOC)-I, ALAPPUZHA DATED 11-07-2005
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APPELLANT/ACCUSED :-
MADHU, S/O.KUTTAN, PUTHANKALAYIL VEEDU, THURUTHIMEL MURI, CHERINADU VILLAGE.
BY ADVS.SRI.JOHN BRITTO SRI.C.A.RAJEEV
RESPONDENT/COMPLAINANT :-
STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, CHENGANNUR RANGE THROUGH THE PUBLIC PROSCUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1230/2005
-: 2 :-
JUDGMENT
The appellant herein challenges the conviction
and sentence against him under Section 8(2) of the Kerala Abkari Act (the Act) in S.C.424/2003 of the Court of Session, Alappuzha. He faced trial before the learned Additional Sessions Judge (Adhoc)-I, Alappuzha on the allegation that at about 6 p.m. on 20.8.2001, he was found possessing 900 ml of arrack in a plastic bottle of 1.5 litre capacity. The offence was detected by a preventive officer of the Chengannur Excise Range. He arrested the accused on the spot, and seized the contraband articles as per a mahazar. On the basis of the arrest and seizure, the Excise Inspector of the Range registered the crime and occurrence report. Another Excise
Inspector conducted investigation, and submitted final report in court.
CRL.A.No.1230/2005
-: 3 :-
witnesses, and proved Exts.P1 to P4 documents in the
trial court. The MO1 property was also identified
during trial. The accused 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 one year, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). Aggrieved by
the judgment of conviction dated 11.07.2005, the accused has come up in appeal.
the materials, I find that there is no satisfactory evidence to prove that the liquid involved in this case, and allegedly seized from the possession of
the accused was, identified as arrack, as the prosecution would allege. PW1 is the Preventive Officer who detected the offence, and PW2 is the Preventive Officer who assisted PW1. PW3 and PW4
examined as independent witnesses turned hostile. The crime was registered by PW5, and investigation
CRL.A.No.1230/2005
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was conducted by PW6. PW1 and PW2 have given
evidence regarding the arrest of the accused, and the seizure of some liquid contained in the MO1 bottle. The crucial question is whether this liquid was identified as arrack.
seal along with the mahazar. But such a specimen seal is not seen in the case file. It is not known what seal was affixed on the sample. Thus, there is nothing to identify the sample produced in Court as
the sample collected from the possession of the accused. In short, there is nothing to prove that
CRL.A.No.1230/2005
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the liquid contained in the MO1 bottle, allegedly
seized from the hands of the accused, was identified as arrack. On this ground itself, the accused is entitled for acquittal. When there is absolutely nothing to prove that the liquid involved is arrack, the other factual aspects need not be probed into.
In the result, this Appeal is allowed. The
appellant herein is found not guilty of the offence under Section 8(2) of the Act, and accordingly, he is acquitted of the said offence in appeal under
Section 386(b)(i) Cr.P.C. The conviction and
sentence against him in S.C.No.424/2003 of the court below will stand set aside. The accused will stand
released from prosecution, and the bail bond, if any, executed by him will stand discharged. The amount, if any, deposited by the appellant in the
court below as a condition for suspension of
sentence will be released to him.
//True copy// P.A. To Judge
Jvt/rkj/24.1.2019
2 issues framed by the court
Whether the prosecution proved that the liquid seized from the appellant's possession was arrack.
Whether the missing specimen of the seal on the sample vitiates the identification of the contraband.
2 provisions across 2 enactments
MADHU
STATE OF KERALA
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
