IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 CRL.A.No. 499 of 2003() ----------------------- SC.548/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT/ACCUSED: -------------------------- K.RAJAN, S/O. KRISHNAN, MACHINADUKAM, PERUMBALA VILLAGE, KASARGOD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. STATION HOUSE OFFICER, KASARGOD POLICE STATION. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal.No.499 of 2003 ========================== Dated this the 18th day of March, 2008 JUDGMENT Appellant was tried before the Additional Sessions Judge's Court (Adhoc-I) Kasargod for the offence punishable under Section 55(a) of the Abkari Act. The trial court found the appellant guilty of the charge and accordingly he was convicted and sentenced 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. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case in brief was that on January 27, 1999 at about 3.15 p.m. the accused was found transporting 30 packets (each containing 100 ml) of Karnataka arrack in a scooter bearing registration No.KL.14/2184. PW1, the Sub Inspector of Police, attached to Kasargod Police Station, deposed before the court that he was on patrol duty along with Police constables on the day mentioned above. When he saw the accused driving the said scooter he intercepted him on suspicion. The contraband was found concealed in the box in Crl.A.499/2003 2 front of the scooter. Since all the packets were identical, he had broken open eight packets. The contents thereof were poured in to two bottles which were sealed in the presence of witnesses. After obtaining their signature on the seal, he had put his signature also on the seal. Ext.P2 seizure mahazer was prepared at the scene. The accused was arrested after completing the formalities of seizure, sampling etc. Ext.P1, F.I.R was registered after reaching the police station and the contraband, sample bottles etc. were handed over to PW3, the Circle Inspector, who conducted further investigation in the case. The sample was sent for analysis from the court pursuant to Ext.P4, Forwarding Note. Ext.P5 report of the Chemical Analyst revealed that the sample contained Ethyl Alcohol. 3. PWs.1 to 3 were examined on the side of the prosecution. Exts.P1 to P5 and MOs.1 and 2 were also marked in the case. In the course of his cross examination PW1 admitted that the seal which he had put on the contraband packets were not visible when they were shown to him in the court. He also stated that he could not say whether the MO2 (series) covers were the same which he had recovered from the accused. Crl.A.499/2003 3 4. According to PW1 he had entrusted the sample bottles and the remaining packets of contraband to PW3 on the same day of seizure viz., January 27, 1999. Though PW3 stated that he had forwarded the material objects including the sample bottles to the court on the next day, the records revealed that they had reached the court only on January 31, 1999. No explanation was given by the prosecution for the delay. More importantly, it is seen from Ext.P5 report of the Chemical Analyst that the sample bottles were received in the laboratory only in the last week of April 1999. No evidence was adduced by the prosecution to show that the sample bottles had been kept in proper custody till they were dispatched to the laboratory. The independent witness had also not supported the prosecution case. The evidence of PW1 does not inspire confidence. As mentioned earlier, PW1 had deposed before the court that the seal which he had put on the contraband packets were missing from them. He was also not sure whether MO2 covers, from which samples were taken, were the same which he had seized from the possession of the accused. The above aspects cast a shadow of doubt on the entire prosecution case. Crl.A.499/2003 4 5. Having regard to the entire facts and circumstances of the case I am satisfied that the appellant is entitled to get the benefit of doubt. Therefore the order of conviction and sentence passed against the appellant is set aside. He is acquitted. The criminal appeal is allowed. A.K.BASHEER,JUDGE dvs