IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No. 2275 of 2007() ------------------------ SC.195/2006 of ASSISTANT SESSIONS COURT, OTTAPPALAM .................... APPELLANT: PETITIONER --------------------- BATTI @ NANJAN, CONVICT NO.5358, CENTRAL JAIL, KANNUR. BY ADV. M.T.SHEEBA[STATE BRIEF] RESPONDENTS: ------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------- Crl.A.No.2275 of 2007 ------------------------------------------- Dated this the 27th day of February, 2008 JUDGMENT This appeal is filed by convict No.5358 Batti alias Nanjan from Central Prison, Kannur assailing the correctness and sustainability of the conviction and sentence passed against him by the Assistant Sessions Judge, Palakkad Division at Ottappalam under Section 8(1) read with Section 8(2) of the Abkari Act vide judgment dated 29.9.2007 in S.C.No.195/06. On conviction, he was sentenced by the court below to undergo simple imprisonment for three years and to pay fine of Rs.1 lakh and in default, to undergo imprisonment for a further term of six months, with however right of set off. 2. The prosecution case is that at about 5.30 p.m. on 10.8.2002 while PW1, the Preventive officer of Agali Excise Range was conducting patrolling from Chittoor to Venkakadavu bridge, the appellant was coming from the opposite direction holding a plastic bag and he attempted to retreat and run on seeing the Excise party ; that the Excise party including himself CRL.A.2275/2007 2 intercepted the appellant and conducted an inspection of the plastic bag that was held by the appellant and there upon it was found that it contained 18 plastic packets each packet containing 100 ml. of arrack and that consequently he was arrested; the contraband arrack packets were seized; 300 ml. of arrack was taken as sample from three packets and it was sealed and labeled; preparing mahazar in that behalf attested also by independent witnesses and that the appellant thereby committed the offence punishable under Sections 8(1) and 55a of the Abkari Act. 3. The case was registered on the basis of the said seizure at the Agali Excise range by the Assistant Excise Inspector preparing Ext.P2 crime and occurrence report and investigation in the case was conducted by PW1, the Excise Inspector of Excise Range, Agali. On completion of the investigation, he laid charge against the accused for the offence under Sections 8(1) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Mannarkadu. The learned Magistrate after complying with all legal formalities committed the case to the Sessions Division, Palakkad and the Sessions CRL.A.2275/2007 3 Judge made over the case for trial and disposal to the court below. The presence of the appellant was procured by the court below by issuing warrant against him, as he did not appear on receipt of summons. Thereafter, preliminary arguments were heard by the court below; charge was framed against the appellant for the offence under Section 8(1) read with Section 8 (2) of the Abkari Act was read over and explained to him in Malayalam and he was questioned. Thereupon he pleaded not guilty and consequently a trial of the case was conducted by the court below. 4. Prosecution examined PWs 1 to 4, got marked Exts. P1 to P4 and also got identified MO1(a) to MO1(c). On the prosecution closing their evidence the accused was questioned under Section 313 Cr.P.C. There upon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid after hearing the submissions of the Public Prosecutor and the defence lawyer, found that the appellant accused committed the offence CRL.A.2275/2007 4 punishable under Section 8(1) read with Section 8(2) of the Abkari Act and convicted and sentenced him there under as already stated. Hence, this appeal from jail by the aggrieved appellant. 5. As the appellant had not engaged a lawyer, Advocate Smt. M.T.Sheeba was appointed on state brief to argue the appeal on behalf of the appellant. Heard arguments of the counsel for the appellant and the public prosecutor. 6. It is vehemently contended by the counsel for the appellant that though the case of the prosecution is that 18 packets of arrack of 100 ml. each was seized from the possession of the appellant and three packets were consumed in sampling. What is produced before the court after such sampling is only 12 packets of arrack; that there is no explanation at all from the side of the prosecution as to how the number of packets described in Ext.P1 mahazar as 18 counts down to 12 after contents in three packets having been taken for the purpose of sampling. She further contended that the only witnesses to the prosecution are the official witnesses and their evidence do not convincingly established a case for conviction against the CRL.A.2275/2007 5 appellant and that for all those reasons the appellant is to be acquitted. 7. It is true that as per Ext.P1 mahazar what is alleged to have been seized from the appellant is 18 packets of arrack each packet containing 100 ml. According to the prosecution, the entire 18 packets were taken into banthavas and three packets were opened and contents taken for sampling. Then the balance should be 15 packets. But the prosecution has produced only 12 packets and nowhere is there any explanation as to where the other packets are. Further, if at all conviction is to stand that has to be on the sole testimony of PWs’ 1 and 2 as PW3 is only the investigating officer and PW4 is an independent witness who has not supported the prosecution case. According to PW1, himself and Excise party accompanying him were proceeding from north to south and it was then that the appellant was coming from the opposite direction. But, according to PW2, they were proceeding from south to north. This contradictory version even as regards the direction along which they were proceeding along a particular road namely road from Chittoor junction to Venkakadavu shows that the prosecution case cannot be true. CRL.A.2275/2007 6 There is no clarification obtained by the prosecution as regards the direction concerned from those witnesses who have given evidence which is diametrically opposite. It is worthy to note that in cases of this nature especially when there are only two official witnesses to support the prosecution case the correctness or otherwise of the case alleged can be understood and appreciated only by critically analysing the evidence of the witnesses who were in the detecting team. In the instant case, only two witnesses were examined and they gave diametrically opposite version as regards the direction to which they were traveling along the road. This is a strong circumstance which belies the prosecution case and at least benefit of doubt in view of such vital discrepancy should have been given to the appellant accused who is alleged to have been found carrying 18 packets of arrack each packet containing 100 ml. of arrack and there is unexplained missing of three packets of arrack therefrom. The court below has not applied its mind to the contrary version so given by the two official witnesses as aforesaid. The conviction and sentence passed by the court below against the appellant in the circumstances deserves to be set aside and the appellant CRL.A.2275/2007 7 acquitted. In the result, allowing this criminal appeal, I set aside the conviction and sentence passed by the court below against the appellant and acquit him of the offence under Section 8(1) of the Abkari Act, punishable under Section 8(2) thereof. Communicate gist of judgment to the appellant through the Superintendent of Central Prison, Kannur. Superintendent of Central Prison, Kannur shall release the appellant forthwith, if his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE csl