IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No. 1057 of 2002() ------------------------ (S.C.123/2000 OF THE ADDL. DIST. & SESSION COURT (ADHOC) THODUPUZHA) ----------------- APPELLANT: ACCUSED IN SC 123/00 OF ADDL.DIST. & SESSIONS COURT, THODUPUZHA: --------------------------- THOMAS @ JOMON, S/O.JOSEPH, NIRAPPEL HOUSE, MUTTOM, THODUPUZHA. BY ADV. SRI.P.C.SEBASTIAN RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ======================= Crl.Appeal.No.1057 of 2002 ========================== Dated this the 27th day of February, 2008 JUDGMENT Appellant was tried for an offence punishable under Section 55(a) of the Abkari Act before the Additional District and Sessions Judge (Adhoc-I) Thodupuzha. The court found the appellant guilty under Section 55 (a) and he was accordingly convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/- and in default to suffer simple imprisonment for a further period of three months. Hence this appeal. 2. The prosecution case in brief was that on September 23, 1998at about 8.05 p.m. the accused was found in possession of about 1125 ml of Indian Made Foreign Liquior (Shivas fine Brandy) in three bottles (375 ml. capacity each). Two of the three bottles were found on the drainage slab on the road side. The accused was seen pouring the liquor in a glass tumbler from one of the three bottles for selling it to the people who had gathered around him in Muttom town on the drainage slab near the taxi stand. PW3 the Police Constable, who had accompanied Crl.A.No.1057/2002 2 the Sub Inspector of Police on patrol duty, stated before the court that the three bottles containing liquor were seized. Nine other empty bottles which smelt of liquor were also seized in addition to one bottle containing water. The glass which was used for pouring the liquor was also seized. 100 m.l. liquor was taken as sample which was sealed and labelled. PWs.1 and 2 did not support the prosecution case. PW4, the Circle Inspector of Police had verified the investigation. PW5, the Sub Inspector of Police who had headed the patrol party, reiterated the prosecution case as spoken by PW3, the Police Constable. 3. It is seen from the record that the contraband articles including the sample bottle had reached the court only on January 14, 1999, more than three and a half months after the alleged seizure. The prosecution had not offered any explanation for the undue delay. Moreover no evidence had been adduced to show that these articles had been kept in proper custody without having any chance of being tampered with. In my view, the above serious flaw in the prosecution case is sufficient to give the benefit of doubt to the accused. 4. There is yet another aspect of the matter. Admittedly, the accused was found in possession of about 1.125 litres of Indian Made Foreign Liquor or even lesser than that. The Crl.A.No.1057/2002 3 learned Sessions Judge had proceeded as though the accused had been facing trial for an offence punishable under Section 8(i) and (ii) of the Act. But the court records do not reveal that the accused had been charged with an offence under Section 8 of the Act which obviously could not have been done, because the contraband liquor, which was allegedly found in possession of the accused, was not arrack. Therefore Section 8 could not have been attracted. In any view of the matter, I am satisfied that the order of conviction and sentence passed against the appellant is liable to be set aside. I do so. The bail bond executed by the accused and the sureties shall stand discharged. The appeal is allowed. A.K.BASHEER,JUDGE dvs