K.D.Surendran, S/O. Divakaran vs Excise Inspector,S.Bathery
2021 Latest Caselaw 19106 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                          CRL.A NO. 1325 OF 2007
AGAINST THE JUDGMENT IN SC 65/2005 OF ADDITIONAL DISTRICT & SESSIONS
                    COURT (ADHOC)-II, KALPETTA, WAYANAD
APPELLANT/ACCUSED:

           K.D.SURENDRAN, S/O. DIVAKARAN,
           AGED 37 YEARS
           KOODALLITHARAYIL VEEDU, CHEMBUKOLLY,, IRULAM AMSOM DESOM,
           VAKERI POST,, SULTHAN BATHERY TALUK, WAYANAD DISTRICT.

           BY ADV SRI.N.J.ANTONY



RESPONDENT/STATE:

     1     EXCISE INSPECTOR,SULTHAN BATHERY,
           WAYANAD DISTRICT.

     2     STATE OF KERALA REPRESENTED BY
           PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

           BY ADV PUBLIC PROSECUTOR



           SRI SANGEETH RAJ , PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1325 OF 2007                 2



                                   JUDGMENT

This appeal has been filed by the sole accused in S.C. No.65/2005 on the

file of the Additional Sessions judge (Adhoc)-II, Wayanad, Kalpetta, challenging

the conviction and sentence imposed on him for an offence under Section 58 of

the Abkari Act.

2. Gist of the prosecution case is that the appellant/accused was found

in possession of about two litres of arrack, at about 05.50 pm, on 08.04.2003.

The accused was arrested on 08.04.2003 and was released on bail on

19.04.2003. Following investigation, a final report was filed before the Judicial

First Class Magistrate Court-II, Sultan Bathery, from where it was committed to

the Court of Sessions and made over to the Additional Sessions Judge (Adhoc)-

II, Kalpetta where charge were framed under Section 55(a) of the Abkari Act.

The appellant/accused pleaded not guilty.

3. Prosecution examined PWs 1 to 6, marked Exts.P1 to P7 and

identified MOs 1 and 2. MO1 is the black plastic can, in which illicit arrack was

allegedly carried and MO2 is a glass.

4. PW1 deposed and gave details of the detection and apprehension of

the appellant/accused and seizure of the material objects. He also marked

Ext.P1 arrest memo and Ext.P2 seizure mahazar. PW2 is the Preventive officer,

Excise Enforcement and Anti Narcotic Special Squad, Wayandad, who was

accompanying PW1, has confirmed the evidence tendered by PW1 in every

material respect. PW3 is the Assistant Excise Inspector, who deposed that the

accused and the seized articles were produced before him by 07.50 pm on

08.04.2003 and that the case was registered against the appellant/accused

accordingly. PW6 is the Excise Inspector of Sulthan Bathery Excise Range, who

produced the seized articles in court along with Ext.P2 list and also submitted

the forwarding note for sending samples for analysis. He marked Ext.P2 list,

Ext.P5 forwarding note and Ext.P6 chemical analysis report. The investigation

of the case was stated to be conducted by the then Excise Inspector, Sri.

Thomas, who was stated to be abroad and not available to give evidence. The

scene mahazar prepared by the said Thomas, the investigating officer, was

proved through PW6.

5. The independent witnesses namely, PW4 and PW5, did not support

the prosecution case. PW4 admitted his signature on Ext.P2 mahazar and also

upon the label on MO2. PW5 has also admitted his signature on Ext.P2

mahazar, but he denied his signature on MO2.

6. It appears that, by the time the case was taken up for trial, the label

affixed on MO1, which is the plastic can containing the alleged illicit arrack, did

not contain any label and therefore, the question as to whether the independent

witnesses had affixed their signature on MO1 together with the detecting officer,

could not be ascertained.

7. The perusal of Ext.P2 mahazar shows that the nature of the seal

affixed on MO1 and the samples drawn for the purpose of analysis is not

mentioned. The forwarding note (Ext.P5), no doubt, contains sample of the seal

affixed on the samples. However, in the absence of any description regarding

the seal in Ext.P2 mahazar and the absence of any label on MO1, it can only be

held that the appellant/accused is entitled to the benefit of doubt as the identity

of the contraband seized from him has not been conclusively proved. In that

view of the matter, the conviction and sentence imposed on the

appellant/accused cannot be sustained.

In the result, this appeal is allowed. The conviction and sentence imposed

on the appellant/accused in S.C. No.65/2005 on the file of the Additional

Sessions Judge (Adhoc)-II, Wayanad is set aside and the appellant/accused is

acquitted.

Sd/-

GOPINATH P.

JUDGE ajt