IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 CRL.A.No. 385 of 2003() ----------------------------------- SC.593/2001 of ADDL. SESSIONS COURT (ADHOC) FAST TRACK -I, THRISSUR .................................... APPELLANT(S): ACCUSED ------------------------------------- BHARATHAN, S/O. KUTTAPPAN @ KRISHNAN, MANGALATHU HOUSE, MANGALAM DESOM, WADAKKANCHERY VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT ------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON08/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------------------- Crl.Appeal.No.385 OF 2003 ---------------------------------------- Dated this the 8th day of October, 2010 J U D G M E N T This appeal arises from the conviction and sentence passed against appellant. The court found the accused guilty of offence U/s. “55(a)” and 58 of Abkari Act. In the last paragraph of the judgment at page 6, the court convicted the accused for offence u/s.”55(i)” and 58 of Abkari Act. Sentence is also imposed u/s “55 (i)” and 58 of Abkari Act. 2. Offence u/s “55(i)” arises if there is sale of liquor or storage for sale in contravention of provision of the Act. But the court has not entered any finding that the accused was engaged in sale or that the article was stored for sale. Therefore sec.55(i) may not be involved in this case. The conviction u/s.58 also is not sustainable since the court has not entered any finding that the prosecution proved the requisite knowledge or the ingredients of sec.58 of the Abkari Act. 3. To establish the offence u/s.58 of Abkari Act, it is not sufficient if prosecution proves possession of arrack by accused. Crl.A. No.385/03 2 Something more is required that is, the incriminating knowledge referred to in section 58 of Abkari Act. On going through records and the evidence, I also find that there is some other discrepancy regarding the O.R. number of the case. Ext.P5 and P6 are occurrence report and the list of articles in this case and the number referred to therein is O.R.5/1998. But the Chemical Analyst's Report, Ext.P7 reveals that articles examined in this case is involved in C.R.16/1998 of Vadakkancherry Excise Range, though the number assigned to the case is O.R.5/1998. The above discrepancy is not explained by prosecution. 4. It can also be seen that the article seized in this case is a colourless liquid, but as per the Chemical Analyst Report, it is described as colourless liquid with “sediments”. In the light of the above discrepancies the prosecution ought to have explained them and cleared the doubt whether the article involved in this case itself was examined by the chemical analyst or not. Learned public prosecutor pointed out that in the final report, an observation is made that O.R.5/1998 was later altered to C.R.16/1998. But this fact has not been brought out in evidence, even though PW1 was specifically questioned on the above Crl.A. No.385/03 3 discrepancy. 5. It is brought out from his evidence that two different numbers are seen from documents and it is also argued that there is no guarantee that the article analysed in this case is the same as that was seized. Still, no explanation is forthcoming from the prosecution. 6. In the light of the above discrepancy, I find that it may not be proper to confirm the conviction entered against accused, especially in the absence of explanation about the difference in the number assigned to sample analysed. Moreover, in the absence of any finding regarding sale of arrack and the ingredients of Sec.58, conviction u/s.55(i) and 58 cannot be sustained. Still, the court found that accused was in possession of arrack. It may be offence u/s.8 or 55(a) of Abkari Act. But the charge is seen framed by court u/s 55(i) and 58 of Abkari Act. On consideration of various aspects, I am of view that case has to be remanded for fresh consideration and disposal. On the peculiar facts and circumstances, the court may even to decide whether any amendment of charge will be required in this case or not. Hence the matter is to be remanded and the following order is Crl.A. No.385/03 4 passed: 1. The conviction and sentence passed against appellant u/s.55(i) and 58 are set aside. 2. The case is remanded to the trial court for fresh consideration and disposal, in accordance with law, in the light of the observations made in this judgment. This appeal is allowed. K. HEMA, JUDGE. Sou.