Conviction and sentence imposed on the appellant by the trial court under Sections 55(a), (b) and (g) and 8(2) of the Abkari Act (in short, “the Act”) is under challenge in this appeal.
2. Prosecution case, in brief, is as follows: On 29.05.1998 at about 5.45 a.m., the appellant was found engaged in manufacturing illicit arrack by using country equipments in a by-lane at Kodumunda. The Excise party led by PW3, the Excise Circle Inspector, Special Squad, Palakkad, caught the accused red handed and seized the contraband articles. Samples of arrack and wash were taken. Thereafter, they prepared a seizure mahazar and after arresting the accused, a case was registered.
3. Trial court examined five witnesses and marked five documents on the side of the prosecution. Exts.D1 to D3 are the documents relied on by the defence.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. Learned counsel for the appellant submitted that this is a case wherein there is no evidence as to when was the contraband produced before the court, when was a requisition for forwarding the contraband to the Chemical Examiner's Lab submitted and when was the forwarding note submitted. Further, there is no material on record to find that a seal was affixed on the contraband as no sample seal was produced.
6. Altogether five witnesses were testified on the side of the prosecution, of which PWs 1 and 2, who are independent witnesses, turned hostile to the prosecution.
7. PW3 worked as the Excise Circle Inspector in the Special Squad, Palakkad. It is the evidence of PW3 that he along with PW4 was on patrol duty at various places within his jurisdiction. It is the case of PW3 that he was having jurisdiction over the entire District of Palakkad. When they reached at the place called Kodumunda near Pattambi at 5.45 a.m., they found the accused engaged in manufacturing illicit arrack. He was having the required equipments. In the process of distilling, they found about 1.5 litres of arrack was produced. The wash was boiling. After identifying the contraband, the Officers arrested the appellant. 300 ml. liquor was taken as sample in a 375 ml. bottle. Out of the quantity of wash, 600 ml. was taken as sample in a 750 ml. bottle. From the place ofdetection, PW3 prepared the occurrence report. That is Ext.P3. The appellant and the contraband articles along with the material papers were produced before the Excise Office, Pattambi. In cross-examination, PW3 stated that they reached at Excise Office, Pattambi at 10.00 a.m. PW4 was a member in the Excise Special Squad and he was working as Excise Inspector. Testimony of PW4 is in agreement with that of PW3 in respect of detection of the offence. In spite of cross-examination on these witnesses, their evidence regarding detection of offence could not be shattered. PW5 is the Investigating Officer. After investigation, he laid the charge.
8. Learned counsel for the appellant submitted that in the absence of any material to show as to when was the contraband produced before the court, it can be assumed that the contraband must have been vulnerable for tampering or for mixing up. Further, no requisition or forwarding note is produced to show that the same sample allegedly recovered from the possession of the appellant, was sent to the chemical lab for analysis. The principles of law stated in Ravi v. State of Kerala (2011 3 KLT 353) have been clearly violated in this case. In the absence of any link evidence to establish that the contraband analysed as per Ext.P4 is the same contraband recovered from the accused, no conviction can be entered in this case. Certainly the benefit of doubt should go to the appellant.
In the result, the appeal is allowed. Conviction of the appellant in S.C.No.5 of 2002 on the file of the Additional Sessions Court, Fast Track-I, Palakkad is hereby set aside. He shall be released forthwith, if not wanted in any other case. His bail bonds are cancelled. If the appellant had deposited any amount at the time of suspending the sentence, it shall be refunded to him.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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