Aggrieved by the conviction of the appellants in Sessions Case No.61/2000 on the file of the Sessions Court, Thalassery for an offence punishable under Section 55(a) of the Abkari Act, this appeal has been preferred.
2. Short facts are as follows :
On 13.10.1998 at about 17.30 hours, the appellants (first and second accused) along with the acquitted 3rd accused, were found travelling in a muruti van. On feeling suspicion, the Sub Inspector of Police stopped the vehicle and examined the boot of the van. It was found that large quantities of various brands of Indian made foreign liquor (I.M.F.L) intended to be sold in the State of Karnataka were being transported in the vehicle. After completing the formalities and taking samples, the accused persons were arrested.
3. Lower court examined four witnesses and marked seven documents on the side of the prosecution. MO1 series are the liquor bottles produced at the time of trial.
4. Heard the learned counsel for the appellants and the learned Public Prosecutor.
5. Learned counsel for the appellants submitted that the court below did not consider the inordinate delay occurred in this case in production of the sample and the contraband articles allegedly recovered from the possession of the appellants. The date of detection was on 13-10-1998. From the judgment of the court below, it is seen that the articles were produced before the learned Magistrate only on 23-11-1998. It is important to note that thondi list was not produced and proved, though it is seen as part of the file. However, this court cannot look into that document to decide the case as it was not proved at the time of trial. None of the prosecution witnesses has stated any explanation for the delay. This aspect in the prosecution case is a glaring infirmity.
6. PW1 is the detecting officer. While he was on vehicle inspection, he found the maruti van bearing registration No.KA- 19/3248 in a suspicious circumstance. On examination, it was found that three accused persons in the van were transporting large quantity of I.M.F.L and the liquor was saleable only in the State of Karnataka. It is his evidence that he took samples and rest of the bottles were produced before the court. The offending vehicle was taken to Assistant Commissioner of Excise for confiscation proceedings. In cross examination, PW1 deposed that the property was received by the learned Magistrate on 23-11-1998 and he produced 650 bottles before the court. At the time of trial, it could be seen that MO1 series was only 637 bottles. Learned counsel for the appellants submitted that there is no explanation stated by any of the prosecution witnesses for the shortage in the number of bottles. The testimony of PW1 would only show that there was detection and seizure of contraband from the appellants.
7. PW2 was the head constable, who accompanied PW1 at the material time. This witness also supported the prosecution case to a great extent. But the illegality in handling the contraband was not explained. I do not find any reason to discard the testimony of PW's 1 and 2 in the matter of search and seizure.
8. PW3 is the independent witness cited to prove the search and seizure. Despite he failed to identity the accused persons, he stated that he signed on Ext.P1 mahazar knowing that it was prepared for detection of the offence.
9. PW4 was the Sub Inspector of Police, Mattannur, who conducted investigation in the matter. He produced forwarding note and other material records before the court. It is seen that Ext.P6 forwarding note was produced only on 18-12-1998. None of the prosecution witnesses has explained the delay in producing the contraband, the delay in producing the thondi list and also the delay in requesting the learned Magistrate to forward the sample for chemical analysis. Difference in the number of bottles allegedly seized and exhibited at the time of trial is also a factor affecting the strength of the prosecution case. In the absence of any evidence to show that the sample taken from the quantity of liquor allegedly recovered from the accused was sent to the chemical laboratory for analysis, the principle of law stated in Ravi v. State of Kerala and Another (2011(3) K.L.T 353) will be violated and the prosecution will have to suffer the consequences. Therefore, the reasons stated by the learned trial judge for explaining away the delay cannot be sustained in the light of the above mentioned decision. Hence, I am of the view that the appellants are entitled to be acquitted for the unexplained illegalities in the matter of investigation.
In the result, the appeal is allowed. Conviction of the appellants under Section 55(a) of the Abkari Act in the above case is hereby set aside. They shall be set free forthwith, if not wanted in any other case. Their bail bonds shall stand cancelled. If any amount has been deposited by the appellants as a condition for securing bail, it shall be returned to them.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD, JUDGE.
amk //True copy// P.A to Judge