IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 CRL.A.No. 1825 of 2003 ------------------------------------- SC.482/2000 of SESSIONS COURT, KASARAGOD .................... APPELLANTS: ACCUSED NOS.1 TO 4 ----------------------------------------------------------- 1. B.JANARDHANAN S/O. BEMBAN, ANANGOOR, KASARAGOD. 2. K.RAMACHANDRAN S/O. MALINGA KANIYANI, KANAKODE, ADHUR, MULLERIA. 3. UMESH S/O. MALINGAN, CHAMAKOCHI, ADOOR. 4. C.KRISHNAN S/O. CHANIYA NAIK, CHAMAKOCHI, ADOOR VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.BINDU SREEKUMAR RESPONDENT / COMPLAINANT --------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON 24/03/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1825 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March 2008 JUDGMENT Appellants, 4 in number, stood trial for offence punishable under Section 55(g) of the Abkari Act before the Additional Sessions Court (Adhoc-I), Kasaragod. The trial court found the appellants guilty of the charge levelled against them and they were accordingly convicted and sentenced to undergo rigorous imprisonment for 3½ years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for three months each. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case in brief was that on May 25, 1998 at about 5 p.m. the appellants and another (accused No.1 who was initially implicated in the case passed away before the trial commenced) were found in possession of 4,000 litres of Wash at Darbaduka in Bandaduka village of Kasaragod district. The Wash was found in cement tubs and plastic cans of different Crl.A.No.1825 OF 2003 :: 2 :: capacities. According to the prosecution, it was intended for manufacture of illicit arrack. 3. Prosecution had examined PW1 to 3 and marked Exts.P1 to P5 on its side. PW1 deposed before the court that he had seen PW3 and other Police officials standing along the accused in side the forest. He further stated that he had seen about 3000 - 4000 litres of Wash in several barrels and cans at that place. He further stated that he had seen 5 accused persons along with the police personnel, who had restrained them. He had signed in Ext.P1 seizure Mahazar as a witness. He further stated that he had seen the taking sample from the Wash. In cross examination, PW1 stated that he had been residing 25 kms away. He had come to the alleged place of occurrence in search of agricultural labourers. He admitted that he had come to this particular place for the first time. According to this witness, the alleged scene of occurrence was about 1 km inside the forest. He had seen about 5 to 8 plastic cans at the place. PW2 deposed that he had signed in Ext.P2 scene mahazar as a witness which Crl.A.No.1825 OF 2003 :: 3 :: was admittedly prepared on the next day of the alleged incident by PW3. It is to be noted that PW3 was the prime prosecution witness. He deposed before the court that he had gone to the alleged scene of occurrence on getting information that illicit distillation was going on in that area. He was on patrol duty on that day along with seven Police Constables. He saw the 5 accused hiding inside the forest with cans in their hands. According to this witness, the accused were found about 10 mts inside the forest. When the accused tried to escape from the scene, they were restrained with the assistance of Sri.Sethumadhavan, Circle Inspector of Police, Adhur. On inspection of the area, 10 cement tubs with capacity of 400 litres each were found fixed on the ground. Two plastic cans of 50 litre capacity and 8 cans of 35 litre capacity each were also found which contained Wash. He was convinced that the accused were removing Wash in plastic cans from the cement tubs for the purpose of illicit manufacture of arrack. The specific case of Crl.A.No.1825 OF 2003 :: 4 :: PW3 was that he had taken samples from the tubs as well as the cans. Though this witness stated that the sample bottles were sealed, he did not speak anything about the manner in which it was done. Significantly, PW3 did not say whether any witness had put his signature on the label of the sample bottles, leave alone any averment with regard to his signature on the seal. Ext.P1 is the seizure mahazar which was allegedly prepared at the scene of occurrence. Curiously, in the said seizure mahazar it is seen recorded that two plastic cans having 50 litre capacity and 8 cans with 35 litre capacity each were seized from the scene of occurrence. It was also recorded that the sample was taken in 20 bottles (300 ml each). But Ext.P4 forwarding note revealed that only 10 sample bottles were forwarded to the chemical analyst. The plastic cans which were allegedly recovered from the scene of occurrence were never marked as mahazar objects in the case. There is also no clue as to where the other remaining 10 sample bottles have vanished. Anyhow, those sample bottles were never produced before the court. Crl.A.No.1825 OF 2003 :: 5 :: Undoubtedly, the prosecution had done a very shabby job. The learned Sessions Judge, in my view, was therefore not justified in holding the accused guilty of the charge levelled against them. The evidence adduced by the prosecution was not satisfactory at all to find the appellants guilty. Therefore, the order of conviction and sentence passed against the appellants is set aside. They are acquitted of the charges levelled against them. Appeal is allowed. (A.K.BASHEER, JUDGE) jes