CRL.A/931/2001 of DEVASSY,C.NO.2300,C.PRISON,VIYYOOR Vs STATE OF KERALA on 17 November 2005

JUDGMENT

The appellant was convicted and sentenced to undergo simpleimprisonment for one year and to pay a fine of Rs.1,00,000 and indefault of payment, to undergo simple imprisonment for one yearunder Section 8(1) and (2) of the Abkari Act. The said conviction andsentence are challenged in this appeal.

2. According to prosecution, on 12.9.1997 at about 2.30 p.m.the appellant was found proceeding along a public road carryingsome paper packets and on seeing the Excise party, he was foundmoving away and on being suspicious of his conduct, PW3 and theExcise party approached him and examined the paper packets. Itwas found to contain two bottles having a capacity of 375 ml.containing full of brown coloured liquid. PW3 tested the nature of theliquid by taste and smell and found that it was coloured arrack.The appellant was arrested from the spot. Both the bottles weresealed from the spot and seized under Exhibit P1 mahazar in thepresence of PWs 1 and 2. An occurrence report was prepared asExhibit P2. The article was sent for chemical analysis through courtand the report of chemical analysis is Exhibit P4, as per which thearticle was reported to contain ethyl alcohol. Hence the accused stooda trial under section 8(1) and (2) of the Abkari Act (`the Act' forshort).

3. The prosecution examined PWs 1 to 4 and marked ExhibitsP1 to P4 on the side of the prosecution. The accused did not adduceany evidence. The court below found that the evidence of PWs 3and 4 Excise officials were believable and that the prosecution

established that appellant transported illicit liquor along a public roadas alleged by the prosecution. Accordingly he was convictedunder Section 8(1) and (2) of the Act. It was held that PWs 3 and 4were cross-examined at length, but nothing was brought out todiscredit their testimonies.

4. Learned counsel appearing for appellant challenges thefinding of guilt mainly on the ground that there is no proof for the factthat the alleged article recovered from the possession of the appellantis liquor or arrack as alleged by the prosecution. According to theprosecution, two bottles containing 375 ml. each of coloured liquidwere seized from the possession of the appellant by PW3 in thepresence of PW4 and independent witnesses, PWs 1 and 2. Theprosecution has also a case that the article is coloured arrack.

5. To prove the case PWs 1 to 4 were examined. PWs 1 and 2turned hostile to the prosecution. They denied having seen theaccused in possession of arrack. PW1 denied appellant'ssignature in Exhibit P1, though PW2 admitted the signature inExhibit P1 mahazar. He stated that he did not see the accused withany liquor. He also did not know the contents of Exhibit P1. Thelower court did not place any reliance on their evidence. However,PWs 3 and 4 gave evidence supporting the prosecution case. Both ofthem said that two bottles containing 375 ml. of arrack were seized.According to PW3, he identified the nature of the article as colouredarrack by taste and smell. PW4 also corroborated this evidence. Sothe prosecution case is that two bottles containing 375 ml. of arrackwere seized from the possession of accused.

6. It was pointed out that there is discrepancy in respect of thealleged seizure. Though the prosecution would claim that twobottles of 375 ml. of liquor were seized, the article sent for

chemical analysis as seen from Exhibit P4 record and also theforwarding note, Exhibit P3, is a bottle containing 180 ml. of liquid.The prosecution has no explanation how and under whatcircumstances a bottle containing 180 ml. of liquid was sent forchemical analysis. What happened to the articles seized is also notexplained. As per the evidence of PWs 3 and 4 and Exhibit P1mahazar, the articles seized from the possession of the accusedwere sealed from the place of occurrence itself. The evidence beingthat the article forwarded for analysis is 180 ml. of liquid in a bottle, itis the duty of the prosecution to explain that the said article was theone taken from the possession of the appellant. In the absence ofany explanation, it has to be reasonably inferred that the article sentfor chemical analysis and the article seized from the possession ofthe appellant which were sealed at the scene of occurrence aredifferent.

7. Admittedly, the article seized is a coloured liquid. But, arrackis a colourless liquid. But what is seized from the possession of theappellant is a coloured liquid. Unless and until the article itself isproduced and marked, it is not possible to hold whether the article isarrack or not. The article which is allegedly seized is not marked in thiscase and there is no explanation for the omission. In the light of thediscrepancies already discussed, merely on the basis of the evidenceof PWs 3 and 4 that PW3 has tested the nature of the liquor, it is notpossible to conclude that the article seized from the possession of theaccused is arrack. Therefore, the conviction and sentence passedagainst the appellant under Section 8(1) and (2) of the Act are notsustainable.

8. The court below has not considered whether the articleseized in this case is arrack or not. Nothing is discussed in the

judgment in this aspect. So also it has not been considered whetherthere was any discrepancy in sending of the article and getting itexamined by the Chemical Analyst. Both the points were omitted tolook into by the court below. A conviction cannot be entered intounder Section 8(1) and (2), unless and until it is established that thearticle seized from the possession of the accused is arrack. There isno finding that the article is arrack.

9. The conviction and sentence passed against the appellantare set aside. The appellant is found not guilty under Section 8(1)and (2) of the Act. He is acquitted of the said offence. He is setat liberty forthwith.

Appeal is allowed.

K.HEMA, JUDGE

K.HEMA, J. ------------------------------CRL.A.NO.931 OF 2001 ------------------------------

JUDGMENT

17.11.2005