IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 520 of 2003() ----------------------- SC.294/2001 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT(S): -------------- K.FRANCIS, S/O.HENRI, KOLIYOOR PODAN, KOLIYOOR VILLAGE, KASARAGOD TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------- 1. STATE OF KERALA. REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, KUMBLA. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.520 of 2003 ----------------------------------------------- Dated 27th January, 2011. J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under Section 55(a) of the Kerala Abkari Act (for short, 'the Act') to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for six months. Set off was allowed. 2. According to prosecution, on 29.2.2000 at about 7.15 a.m., accused was found on a Panchayat road coming from east to west carrying a white can. On suspicion, he was apprehended by PW2, who is an Excise Inspector. The can was examined and it was found to contain 7 litres of arrack. The accused was arrested and the articles were seized under a mahazar, Ext.P1. A case was registered as per Ext.P2 occurrence report. Sample was taken and it was sent for analysis and the report is Ext.P4. The case was investigated into and a charge was laid for offence under Section 55(a) of the Act. Crl.Appeal No.520/03 2 3. To prove the prosecution case, PW1 and PW2 were examined and Exts.P1 to P4 were marked. The accused did not adduce any evidence. He pleaded innocence. No defence evidence was adduced. On an analysis of the evidence on record, the trial court found that PW2 gave cogent, convincing and consistent evidence. Based on his evidence, appellant was convicted for offence under Section 55(a) of the Act. 4. At the time of hearing, neither the appellant nor counsel was present. Heard learned Public Prosecutor. On going through the records, I find that only two witnesses were examined in court. PW1 is an independent witness. He stated that he did not know anything about the incident and that he was not questioned. However, he admitted his signature in Ext.P1. His evidence will not disclose that appellant was found in possession of arrack, as alleged by the prosecution. 5. The sole evidence against appellant is the evidence of PW2. He deposed that he is an Excise Inspector and he found the accused carrying a can in a plastic bag. On Crl.Appeal No.520/03 3 suspicion, the bag was examined and inside the bag, a can was found which contained arrack which was identified by taste and smell. A sample was taken from the arrack and the articles were seized and produced before the court along which the accused, who was arrested. He also stated that he conducted investigation and filed the case before the court. 6. On going through the evidence of PW2, it is seen that it is full of contradictions and inconsistencies. According to PW2, accused was found coming from south to north, but in the seizure mahazar (Ext.P1), the road is lying east-west and the offence was detected, while accused was found coming from west to east. Thus the evidence of PW2 is not consistent with the details in Ext.P1 even with respect to the lie of the road and the direction in which accused was coming. 7. The evidence of PW2 is inconsistent with respect to the colour of the plastic bag and the colour of the can in which the article was found. It is not a case where PW2 stated that he did not remember the colour. He admitted that in the property list, originally the can was stated to be “black” in Crl.Appeal No.520/03 4 colour but it was struck off and it was corrected as “white”. He categorically admitted that the can produced before the court in this case was “white” in colour. But what is seen in the court is a black can. He also admitted that the label showed the inscription “crime No.3/2000”, but the label was not written in his handwriting. 8. It is also stated by him that the can was carried by the accused in a bag which was having “green and white” stripes but the bag which is produced in court is “yellow” in colour. He also deposed that he entrusted the articles in the office, but he did not know what happened to those articles thereafter. A suggestion was made that some articles taken from the office were taken and produced against accused and a false case was registered against him. PW2 has no case that any particular officer was entrusted with the articles and in whose custody those were kept in the office. 9. It is clear that the evidence is totally inconsistent with the contemporaneous documents prepared in connection with this case. PW2 himself admitted that the articles produced Crl.Appeal No.520/03 5 in court were not the articles seized from the place of occurrence. As per the evidence, sample was taken from the articles seized from the possession of accused. In the light of the discrepancies in the evidence of PW2, it cannot be said that prosecution proved its case beyond reasonable doubt that arrack was seized from the possession of the accused, in the circumstances stated by prosecution. Hence, the trial court ought not to have convicted the accused in the light of the shabby evidence given by PW2. It is relevant to note that the trial court itself found that the material objects produced during trial are not those which were seized. 10. In the above circumstances, the conviction and sentence passed against the appellant cannot be sustained in the light of the sole testimony of PW2. No other evidence was adduced by prosecution to prove the case. It is also relevant to note that PW2 is the person who detected the crime, investigated and laid the charge. In the light of the inconsistent and contradictory evidence of PW2, the accused cannot be convicted for offence under Section 55(a) of the Act. Crl.Appeal No.520/03 6 11. In the result, the following order is passed : (i) The conviction and sentence passed against appellant under Section 55(a) of the Act are set aside. (ii) The appellant is found not guilty and he is acquitted of offence under Section 55(a) of the Act. (iii) The appellant is set at liberty forthwith. The appeal is allowed. K.HEMA, JUDGE. tgs