IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 CRL.A.No. 2124 of 2003() ------------------------ SC.71/2000 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA .................... APPELLANT/ACCUSED: -------------- RADHA, D/O.GOPALAN, POTHUTHIL KIZHAKKETHIL, PALAMEL VILLAGE, ADIKKATTUKULANGARA MURI, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. --------------------------------- Crl.A.No.2124 OF 2003 ---------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T ~~~~~~~ Appellant is the accused in Sessions Case No.71/2000 on the file of the Additional Sessions Judge, Fast Track (Adhoc-II), Alappuzha. She was convicted by the Additional Sessions Judge for offence under Section 55(a) and (i) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs. One lakh with default sentence of rigorous imprisonment for three months. Assailing the above conviction and sentence, this appeal is preferred. 2. PW5, the Sub Inspector of Nooranad Police Station filed a chargesheet against the appellant alleging the above offences with an allegation that at 2 p.m. on 8.5.1999 the appellant was found possessing 44 packets, each with 150ml of arrack in a plastic bag, which was marked as MO3. MO1 series are 42 packets. MO2 series are the empty plastic packets from which sample was taken for analysis. Ext.P1 is the seizure mahazar. Ext.P2 is the First Information Report. The samples Crl.A.No.2124/2003 2 were sent for analysis. After analysis, it was reported by the Chemical Examiner that the samples contained 21.95 % and 22.75% of Ethyl Alcohol by volume. 3. The appellant pleaded not guilty. On the side of the prosecution, PWs 1 to 5 were examined. Exts.P1 to P4 and MOs 1 to 3 were marked. The appellant took a defence of total denial. No defence evidence was let in. Prosecution would rely upon the evidence of PWs 1 and 2 to prove the offence alleged. PWs 3 and 4, two occurrence witnesses, turned hostile. According to PW1, while he was in the Police Station at 2 p.m. on 8.5.1999 he was informed by a Police Constable that the Assistant Sub Inspector had detected out the offence alleged. He immediately rushed to the spot. According to PW1, when he reached the spot MO3 plastic bag with 44 packets of arrack was in the possession of the Assistant Sub Inspector. One packet was broken by the Assistant Sub Inspector to test the nature of the liquid and was tested by smell and taste. For the best reason known to the prosecution, the Assistant Sub Inspector was not examined. If reliance is given to the testimony of PW1, the Crl.A.No.2124/2003 3 appellant was not at all possessing any contraband. PW2 would depose that he was accompanying Assistant Sub Inspector on patrol duty on that day and while moving so, they found the appellant standing in front of a tea shop at Adikattukulangara with MO3 plastic bag. On examination, it was found that the plastic bag contained 44 packets of arrack. One cover was opened and the contents was tested and then the Assistant Sub Inspector sent him to the Police Station to report the matter to the Sub Inspector. He returned along with the Sub Inspector and women constables and the Sub Inspector seized the material objects. If the evidence of PW2 is taken into account, PW2 had given the First Information Statement to PW1. Curiously, such statement was not recorded. Whereas PW1 himself recorded his statement as First Information Statement after arresting the appellant and seizing the contraband. In the First Information Statement, it was stated that he had seen the appellant carrying MO3 plastic cover with packets of arrack. That submission is given a go-bye while PW1 was examined. In the box it was deposed that the Assistant Sub Inspector was carrying the bag. Therefore, no credibility can be given to the First Information Crl.A.No.2124/2003 4 Statement. For the best reason known to the prosecution, the First Information Statement was also not marked. In fact, the First Information Statement would have been that of PW2, but not recorded. Such being the evidence on record, I find that it would be appropriate to give the benefit of doubt to the appellant. I find that the appellant is entitled to an acquittal. 4. In the result, while allowing this appeal, the conviction and sentence under challenge are set aside. The appellant would stand acquitted. The appellant shall appear before the Additional Sessions Judge within 15 days and execute a bail bond for Rs.20,000/- (Rupees Twenty thousand only) with two solvent sureties each for the like sum to the satisfaction of the trial Judge under Section 437A of the Code of Criminal Procedure. (P.S.GOPINATHAN, JUDGE) ps/15/11