IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 CRL.A.No. 2116 OF 2003 ------------------------ SC.160/2001 OF ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT/ACCUSED: --------------------------------- RAJAPPAN, S/O. GOPALAN, KOLAPPURAM, PANATHADY VILLAGE. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. THE STATION HOUSE OFFICER, RAJAPURAM POLICE STATION. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. REJI JOSEPH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 2116 OF 2003 = = = = = = = = = = = = = = DATED THIS, THE 9th DAY OF DECEMBER, 2011. J U D G M E N T The appellant was convicted by the Additional Sessions Judge, (Adhoc I) Kasaragod in S.C. No. 160 of 2001 on his file for offence under Section 55(g) of the Abkari Act and sentenced to rigorous imprisonment for 31/2 years and a fine of Rupees one lakh with a default sentence of rigorous imprisonment for three months. Assailing the above conviction and sentence, this appeal is preferred. 2. I have heard Advocate Smt. T. Sudhamani, learned counsel appearing for the appellant and Sri. Reji Joseph, the learned Public Prosecutor. Perused the evidence on record and the judgment impugned. 3. The prosecution case is that at 7 p.m. on 6.8.1999 PW.2, the Sub Inspector of Police, Rajapuram Police Station got information that the appellant was distilling illicit arrack. Accordingly, PW.2 and party proceeded to the house of the appellant bearing Door No. PP-VII/364 at Kolappuram in Panathady village. On search, it was found that in a pit at CRL.A. 2116/2003 2 the courtyard of the house 25 litres of wash was burried in a 30 litre capacity aluminum vessel. No sooner the wash was searched out than the appellant took to his heels. PW.1 took 375 ml. of wash each in two bottles for chemical examination. For the seizure of the contraband, Ext.P2 seizure mahazar was prepared. Returning to the police station, a case was registered for which Ext.P3 FIR was prepared. After investigation, he submitted the charge sheet before the Judicial Magistrate of the First Class -I, Hosdurg alleging offence under Section 55(g) of the Abkari Act. 4. On finding that the offence alleged is exclusively triable by a Court of Session, the case was committed to the Court of Session, Kasaragod from where it was made over to the Assistant Sessions Judge, Hosdurg. Subsequently, the case was transferred to the Additional Sessions Judge (Adhoc-1) Kasaragod. The Additional Sessions Judge after hearing the prosecution and the appellant, framed charge for the said offence. The appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution PWs 1 to 6 were examined. Exts.P1 to P5 and M.Os 1 and 2 were marked. After closing the evidence for the prosecution, when the appellant was questioned under Section 313 (1)(b) of the Code of Criminal Procedure he denied the incriminating evidence. No defence CRL.A. 2116/2003 3 evidence was adduced. On appraisal of the evidence on record, the learned Additional Sessions Judge arrived at a conclusion of guilt consequent to which the appellant was convicted and sentenced as above. 5. PW.1 is an attestor to Ext.P1 scene mahazar. No attestor to Ext.P2 seizure mahazar was examined. Admittedly there is no whisper in the evidence of PW.2 that he is previously acquainted with the appellant. Though PW.2 would depose that he had verified the ownership of the house with village records, no document is produced. Therefore, in fact there is no evidence to show that the property from where the contraband was seized is belonging to the appellant. It is also pertinent to note that PW.2 is the detecting as well as the investigating officer. PW.2 has no case that during investigation he got the appellant identified. None of the neighbours were examined to show that the property from where contraband was seized belonged to the appellant. In fact, there is no evidence regarding the identity of the appellant. In the above circumstances, I find that the prosecution has miserably failed to establish that the appellant was the person who was possessing the contraband. Therefore, the conviction and sentence under challenge are not sustainable. CRL.A. 2116/2003 4 In the result, this appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. P.S. GOPINATHAN, (JUDGE) Knc/-