IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 27TH FEBRUARY 2002 / 8TH PHALGUNA, 1923 CRL.A.No. 320 of 2002() ----------------------- (S.C.267/2000 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK COURT No.I, THRISSUR) --------------- APPELLANT/ACCUSED: ----------------------------- AJITHAN, S/O. KOVATTU VEETTIL VASU, ANJOOR VILLAGE, DESOM, TALAPPILLY TALUK. BY ADV. SRI.P.CHADRASEKHAR RESPONDENT/COMPLAINANT: ------------------------------------ THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ======================= Crl.Appeal.No.320 of 2002 ========================== Dated this the 27th day of February, 2008 JUDGMENT Appellant was tried for an offence punishable under Section 55 (g) of the Abkari Act before the Additional Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur. The court found him guilty and he was accordingly convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. Set off was allowed under Section 428 of the Code of Criminal Procedure. 2. The gist of the prosecution case was that on October 6,1998, at about 12.30. p.m. PW1, Preventive Officer, attached to the Excise Range, Kunnamkulam had found the accused stirring some liquid in a pot in a bush near Alungal bridge of Ayoor village. PW1 smelt and tasted the liquid in the pot and found that it was wash. Two similar pots containing the same liquid were also found nearby. 500 ml. of the liquid was taken as sample in a bottle having a capacity of 750 ml. The sample bottle was sealed and labelled. PW1 and the accused put their Crl.A.No.320/2002 2 signature on the label. The wash in the three pots was destroyed and the three plastic pots were seized. PW1 arrested the accused and produced him before the Excise Inspector. Later, he was produced before the court along with the contraband articles which were seized. 3. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P6 and MO1 series. PW1, the Preventive Officer, deposed before the court that he found the accused stirring a pot containing wash near the bush under the Alungal bridge at about 12.30 p.m. on October 6, 1998. After satisfying himself that the liquid was wash by taste and smell PW1 took 500 ml. of wash as sample in a bottle having a capacity of 750 ml. Two other cans containing similar liquid were also seized. It was found that the accused was in possession of 45 litres of wash in the three cans. After taking sample, the remaining wash was destroyed. PW1 had obtained the signature of the accused on the label which was affixed on the sample bottle. He had put his signature also on the label. According to PW1 he had prepared Ext.P1 Mahazar and Ext.P2 arrest memo at the spot. In Ext.P1 Mahazar, two independent witnesses (PWs.2 and 3) had put their signature Crl.A.No.320/2002 3 apart from the two Officials. PWs.2 and 3 stated that they had not seen the accused being taken in to custody or anything being recovered from him. PW4, the Excise Inspector, stated that PW1 had produced the accused and the contraband articles before him on October 6, 1998. He had registered the crime and Ext.P4 occurrence report thereafter. Report of the chemical analyst which was marked in the case as Ext.P6, showed that the sample contained 10.37% of ethyl alcohol. 4. It is pertinent to note that no official witness other than PW1 had been examined in the case to prove recovery or seizure. Significantly, PW1 while he was examined in court had no case that any other member of the patrol party had witnessed the alleged detection and seizure. It is true that two Excise officials had allegedly signed in Ext.P1 Mahazer. But PW1 had no case that he had detected the offence and effected seizure and recovery in the presence of other official witnesses. In cross examination, PW1 stated that three other members of the patrol party were sitting in the jeep. But curiously he did not remember the number of the jeep nor did he say that the other members of the patrol party had accompanied him to the alleged Crl.A.No.320/2002 4 scene of occurrence, which was admittedly 200 meters away from the place where the jeep had been parked. In the above circumstances, I am not inclined to place any reliance on the sole testimony of PW1. Surprisingly no other member of the patrol party had been examined by the prosecution, which was probably for the reason that no one else was present at the scene of occurrence though two other Excise guards had allegedly put their signature in Ext.P1 mahazer. As mentioned earlier PWs.2 and 3 turned hostile to the prosecution. Evidence of PW4 did not in any way advance the prosecution case. 5. It is also relevant to note that the sample bottle was received by the chemical analyst only on November 28, 1998 nearly one and a half months after the alleged sampling. No requisition from the Excise Official to send the sample for analysis was also produced and no evidence was adduced to show that the sample bottle had been kept in proper custody till it was forwarded to the chemical analyst. 6. There is yet another aspect of the matter. In Ext.P5 list of thondi articles, what had been produced before the court were (1) about 45 litres of wash contained in three plastic cans Crl.A.No.320/2002 5 having capacity of 50 litres each (2) bottle having capacity of 750 ml containing 500ml of liquid. PW1 had categorically stated that after taking samples, he had destroyed the wash at the scene of occurrence itself. Ext.P5 will not show that three empty plastic cans had been produced before the court. What had been produced as indicated earlier was only 45 litres of wash. Thus, it is evident that the prosecution had done a shabby job. 7. Having regard the totality of facts and circumstances, I am not satisfied that the court below was justified in convicting the accused. It is brought to my notice that the accused had remained in custody for more than one year and five months ie., from October 6, 1998 till march 8, 2000. Therefore, the order of conviction and sentence passed by the court below is set aside. The accused is acquitted. The bail bond executed by him and the sureties shall be discharged. Appeal is allowed. A.K.BASHEER,JUDGE dvs