IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 CRL.A.No. 1966 of 2003() ------------------------------------ SC.NO.84/2001 of ADDL.SESSIONS COURT (ADHOC-1), KASARAGOD .................... APPELLANT(S)/ACCUSED ------------------------------------- PUTHIYA PURAYIL KRISHNAN @ IYYAKKAD KRISHNAN, S/O.CHITTAYI, KARIVELLUR VILLAGE, THALIPARAMBA TALUK. BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE ADV.SRI.BINDU SREEKUMAR RESPONDENT(S)/COMPLAINANT --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.REJI JOSEPH PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.S.GOPINATHAN, J ---------------------------------- CRL.A.No.1966 of 2003 ------------------------------------ Dated this the 7th day of December, 2011. JUDGMENT Additional Sessions Judge, (Ad hoc-I) Kasargod in S.C.No.84/2001, convicted the appellant for offence under 55(a) of the Abkari Act and sentenced to rigorous imprisonment for 3 1/2 years and a fine of Rs.1,00,000/- with default sentence. Assailing the above conviction and sentence, this appeal is preferred. 2. I have heard Adv. Sobhana.P.B, learned counsel appearing for the appellant and the learned Govt. Pleader, Sri.Reji Joseph. 3. Prosecution case is that on 28/3/1999, while PW1, the Preventive Officer attached to Excise Enforcement and Anti Narcotic Special Squad , moving on patrol out along with Excise party, found the appellant coming across with two plastic bags in his hands. Seeing the excise party, he dropped the bags and took to his heels. The attempt to chase the appellant was futile. Therefore, the contents in the plastic bags were examined and found that the one bag was containing 11 bottles of Shivas XXX rum. Other bag contained Johar XXX rum in 11 bottles, each measuring 375 milli litres. The bottles along with the plastic bags were seized for which Ext.P1 Seizure Mahazar was prepared wherein the PW2 and others are the attestors. Contents from one of the bottles from each set was taken into sample bottles, sealed then and there and sent for CRL.A.No.1966 of 2003 2 chemical examination. It was reported by the Chemical Examiner that the samples contained 45.90 and 45.53 percent by volume of ethyl alcohol. The investigation was taken over by PW5, the Excise Inspector. After completing investigation, charge sheet was submitted. It was submitted before the Judicial Magistrate of the First Class, Hosdurg, who on finding that the case is triable by a Court of Session committed the case to the Court of Session, Kasargode, by order dated 13/12/2000. The learned Sessions Judge made over the case to Additional Sessions Judge. 4. The appellant pleaded not guilty, when the charge was framed and read over by the Additional Sessions Judge. Therefore, he was sent for trial. PW1 to 5 were examined and Exts. P1 to P5 were marked. Mos 1 to 4 were also marked. The appellant took a defence of total denial. No defence evidence was let in. The learned Additional Judge on appraisal of the evidence, arrived at a conclusion of guilt consequent to which the appellant was convicted and sentenced as above. 5. Going by the evidence of PW1, I find that his evidence regarding recovery from the spot is believable. So also, evidenced by Ext.P5, it can be concluded that the contraband liquid contained 45.90 and 45.53 percent of ethyl alcohol by volume. But there is no sufficient evidence regarding the identity of the appellant. In Ext.P1 seizure mahazar, it is reported that the appellant Krishnan was previously acquainted as an employee in an arrack shop. But in the CRL.A.No.1966 of 2003 3 the box, PW1 has no such case. In cross examination, he would admit that the identity of the appellant was ascertained from the excise guards and the witnesses. For reasons, best known to the prosecution, none of the guards was examined. One of the witness examined, did not support the prosecution. In effect, there is no evidence on record to come to a conclusion that the appellant is the person, who was carrying the contraband liquid. There is no case for the prosecution that the appellant, who surrendered before the Investigating Officer was got identified by the witnesses before filing the charge sheet. Identification of the appellant for the first time in the witness box is not reliable to enter conviction. Therefore, the evidence of PW1 to come to a conclusion of guilt is not at all reliable. The prosecution has not succeeded to establish the identity of the appellant. Therefore, the appellant is entitled to an order of acquittal. In the result, the appeal is allowed. While setting aside conviction and sentence under challenge, the appellant would stand acquitted. He is directed to appear before the Trial Court and to execute a bond under Section 437 A of the Code of Criminal Procedure with such terms as may be determined by the Trial Court, failing which the appellant shall be brought under arrest and get a bond executed by the Trial Court. P.S.GOPINATHAN, JUDGE su