IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 1ST DAY OF FEBRUARY 2011/12TH MAGHA 1932 CRL.A.No. 693 of 2003 ( ) ------------------------- AGAINST THE JUDGMENT IN SC.206/1999 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI DATED 31-03-2003 (CP.19/1999OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR) APPELLANT(S): ------------------------ SUBRAMANIYAN, S/O THAMI, VETTOM AMSOM VEVANNA DESOM, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.N.J.JOHNSON RESPONDENT(S): ---------------------------- 1. EXCISE INSPECTOR, TIRUR EXCISE RANGE OFFICE, TIRUR, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.693 OF 2003 ----------------------------------- Dated 1st February, 2011 J U D G M E N T Appellant was charge sheeted for offence under sections 58 and 8(1) of Abkari Act. After trial, he was convicted and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,00,000/- In default, he shall undergo simple imprisonment for one year. Set off was also granted. The said conviction and sentence are challenged in this appeal. 2. According to prosecution, while PW1, Excise Inspector was proceeding from east to west on the road lying on the southern side of house of one Velayudhan. The Excise party found the accused coming from west to east, in the opposite direction carrying a can (MO1). On seeing the Excise party, he attempted to go back. He was apprehended, the can was examined and it was found to contain two litres of arrack. Sample was taken. Accused was arrested from the spot, articles were seized and a mahazar was prepared. On investigation, he Crl.A. No.693/03 2 was found to have committed offence under section 58 and 8(1) of Abkari Act. 3. To prove prosecution case, PW1 to PW5 were examined. Ext.P1 to P7 and MO1 were marked. On the side of the accused, D1 to D3 were marked. Accused denied allegations made against him. 4. On hearing both sides and on perusal of the records I find that accused was charge sheeted for offence under section 58 and 8 of Abkari Act. But it is not mentioned under which provision the conviction is entered. The ingredients of section 58 and section 8 are totally different. To prove offence under section 58 of the Abkari Act, the requisite knowledge referred to in the said section are necessary. The prosecution must prove that accused had the requisite knowledge of the facts stated in section 58 of the Act. But the trial court has not entered any finding regarding the relevant facts. 5. It is also relevant to note that in the charge framed by court also the ingredients of section 58 are not stated. Therefore, the trial court cannot convict or sentence the appellant under section 58 of Abkari Act. It is seen from the judgment that trial court relied upon section 64 of Abkari Act and it is held that the presumption is not rebutted by accused. The rebuttal of Crl.A. No.693/03 3 presumption arises only in cases which fall under section 58 of the Act and not under section 8 of Abkari Act. Any way, conviction under section 58 of the Act is not attracted on the facts of this case and conviction for offence under section 58 of Abkari Act is illegal. 6. In this context, it is relevant to note that section 354 of Code of Criminal Procedure mandates that court shall specify the offence of which accused is convicted and the punishment to which he is sentenced in the judgment. In every judgment, the court shall specify the provision under which accused is convicted. The non compliance of requirement under section 354 (1)(c) of the Code caused prejudice to the accused and hence it cannot be successfully contended that he has to be convicted under section 8 of Abkari Act. 7. Thus coming to the facts of this case it appears that there is no proof regarding whether MO1 is seized from the possession of the accused. MO1 is the can, arrack is allegedly found carried by accused. It was from such arrack, sample was drawn. As per the prosecution case, signature of the accused was obtained on the label affixed on MO1. But PW1 deposed that signature is not seen on the label, since it is faded. PW2 deposed that there is no label containing the signature of accused on MO1. Thus, there is Crl.A. No.693/03 4 a contradiction between the evidence of PW1 and PW2. 8. In this context, the trial court observed that there was no label on MO1, but only adhesive is seen on MO1. There is no explanation from prosecution for this fact. The offence under Abkari Act is serious in nature as submitted by learned defence counsel and court must be very conscious in analysing evidence before a person is convicted for offence under Abkari Act. 9. Prosecution would allege label was affixed on the can which was seized from accused and the signature of the accused was obtained on the label. But no such label with signature is now seen on MO1 and hence, the identification of MO1 in the court by PW1 and PW2 is doubtful. In this context, it is also relevant to note that there is every possibility for witness to commit mistake. PW5 was questioned regarding the discrepancy in the original of arrest memo and the copy given to accused as Ext.P2. 10. On a comparison of the arrest memo and Ext.P2, it can be seen that there is no comparison at all between the signature of Ext.P2, original arrest memo and the photocopy which is issued to the accused. It is marked as Ext.D3. The prosecution did not explain the said discrepancy. In such circumstances, it is likely that there can be some mistake and hence, based on the Crl.A. No.693/03 5 evidence of PW1 and PW2 alone, I am hesitant to act upon the testimony of PW1 and PW2 that MO1 can was seized from the possession of accused, from which sample was allegedly drawn. At any rate, accused is entitled for benefit of doubt. In the result, the following order is passed: (i) The conviction and sentence passed against appellant are set aside. (ii) The appellant is acquitted of offences under sections 58 and 8(1) read with section 8(2) of Abkari Act, extending benefit of doubt. (iii) The appellant is set at liberty forthwith. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //