Revision Petition is filed by challenging the concurrent findings of the trial court and the lower appellate court, that the petitioner is guilty of the offence under section 58 of the Abkari Act.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. The prosecution case in short is that on 1.7.1996 at 6.00 p.m., the accused was found in possession of two litres of illicit arrack, in violation of the provisions of the Abkari Act and thereby committed an offence punishable under section 58 of the Act.
4. The learned Magistrate examined three witnesses and marked three documents on the side of the prosecution. There was no defence evidence adduced. M.O.1 is the plastic can allegedly possessed by the accused. The trial Court convicted the appellant basing on the oral evidence of the officers, who allegedly made the detection of the offence. The lower appellate Court confirmed the conviction and sentence and dismissed the appeal.
5. The learned counsel for the revision petitioner submitted that the conviction of the petitioner under section 58 of the Abkari Act is legally not sustainable. According to him, there is no evidence to show that the contraband, allegedly recovered from the possession of the accused, was produced before the Court in a tamper proof condition and the same contraband was send up to the chemical lab for analysis. In this context, certain dates are relevant. PWs 2 and 3, the Officers of the Excise department, deposed that they recovered contraband from the possession of the accused on 1.7.1996. The occurrence report was registered on 2.7.1996. The occurrence report was produced before the Court only on 16.7.1996. Even though PW3 deposed that he produced the property list, it was not marked.
6. However, the property list is available in the case records which shows that the Court received the same only on 16.07.1996. There is no explanation stated by any of the witnesses for the delayed production of the occurrence report and the contraband, along with the property list, before the Court. It is not deposed by any prosecution witness as to who was in custody of the contraband till it was produced before the Court. There is no reliable material to think that the contraband recovered from the possession of the accused went to the lab in a tamper proof condition.
7. Therefore, in the light of the binding judicial pronouncements, I find that the conviction is illegal. It is liable to be set aside. It is further to be seen that, in order to attract an offence under section 58 of the Abkari Act, the prosecution is duty bound to establish that the accused was in possession of illicit arrack knowing that he is not legally entitled to possess the same. No such allegation is made in the material documents nor that fact proved. For that reason also conviction is not sustainable.
In the result the revision petition is allowed. Conviction of the revision petitioner under section 58 of Abkari Act in C.C. 550/1996 of Judicial First Class Magistrate Court-II, Hosdurg, is set aside. The revision petitioner shall be set free forthwith if not wanted in any other case.
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A. HARIPRASAD, JUDGE //True Copy// P.A. To Judge jjj