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2016 DIGILAW 244 (KER)

Balaji v. State of Kerala

2016-02-29

P.D.RAJAN

body2016
JUDGMENT 1. This appeal is preferred by the accused against the conviction and sentence in S.C. No.597 of 2002 of the Additional Sessions Judge (Fast Track-I) Alappuzha under Sec.8 of the Abkari Act. The charge against the appellant is that on 05.10.2002 at 7.20 p.m., the appellant was found in possession of 950 m.l. of arrack in front of the house of one Rajappan Pillai, Mangattethu Padittathil veedu by the Preventive Officer, Excise Range office, Mavelikkara. He was arrested and the contraband articles were seized. Reaching at the Excise Range Office, he registered a crime. After completing investigation, the Excise Inspector, Mavelikkara laid charge before the Judicial First Class Magistrate Court, Mavelikkara. From there, the case was committed to Sessions Court, Alappuzha. Subsequently, it was made over to Additional Sessions Judge, (Fast Track) I, Alappuzha. 2. During trial, the prosecution examined PW1 to PW6 and marked Exts.P1 to P5 as documentary evidence. MO1 was admitted as material object. The learned Additional Sessions Judge convicted the accused under Sec.8 of the Abkari Act and sentenced him to imprisonment for two years and a fine of Rs.1,00,000/- (Rupees one lakh only). In default of payment of fine simple imprisonment for a period of one year. Being aggrieved by that, he preferred this appeal. 3. Heard both sides. The main contention advanced by the learned counsel appearing for the appellant is that no documents were produced in the Trial Court to show that proper sampling was made at the time of seizure. There is no independent corroboration to the alleged seizure. It is submitted that when an incident is occurred at 7.20 p.m., independent witness is necessary to substantiate the alleged seizure. The oral evidence of PW1 and PW2 is not sufficient to convict the accused in the light of the available evidence. 4. The occurrence was deposed by PW1, Preventive Officer, Excise Range Office, Mavelikkara. His evidence shows that on 05.10.2000 at 7.20 p.m., he was conducting patrol duty along with the excise party, through Mavelikkara-Pandalam road and reached in front of the house of one Rajappan Pillai, Mangattethu Padittathil veedu. Appellant was found carrying two bottles. PW1 intercepted him and examined the bottles, in which he detected 750 m.l and 200 m.l. of liquid. During inspection, the content in the bottles were detected as arrack. Appellant was found carrying two bottles. PW1 intercepted him and examined the bottles, in which he detected 750 m.l and 200 m.l. of liquid. During inspection, the content in the bottles were detected as arrack. He took samples and properly sealed it at the place of occurrence and affixed the label on the bottles. He also put the signature in the label which was affixed in the bottles. The accused and witness signed in the label. He prepared Ext.P1 mahazar which was attested by independent witness. Ext.P2 is the arrest memo. PW2, the excise guard accompanied PW1, supported the oral testimony of PW1. PW2 deposed that he saw the seizure of arrack and also identified the contents in MO1 and MO2. Analysing the evidence of PW1 and PW2, it is clear that they are deposing about the materials collected by them at the time of seizure of arrack. 5. The independent witnesses PW3 and PW4 did not support the prosecution case and they denied the signature in Ext.P1. It shows that there is no independent corroboration to the alleged seizure of MO1 and MO2. PW5, the Excise Inspector admitted that he received the contraband articles and on the basis of that, he registered Ext.P3 crime. The seized articles were produced before the court as per Ext.P4 Thondi list. After completing investigation, PW6 laid charge before the Court. He deposed that the contraband articles were produced before the court for chemical examination. Ext.P5 is the Chemical Examination Report. In which, it is reported that 40.82 % of ethyl alcohol was detected in the samples. It is reported that the seal on the objects were in tact and found tallied with the sample seal provided. In the absence of any independent corroboration, the report in Ext.P5 itself is not sufficient to show that the seized articles were properly sealed at the time of seizure and forwarded to the chemical examination lab in a tamper proof condition. This legal infirmity will affect the credibility of the alleged seizure. This position was explained in the decisions reported in Raju v. State of Kerala [ 2010 KHC 877 ], Ravi v. State of Kerala [ 2011 (3) KLT 353 ] and Jose @ Babu v. State of Kerala [ 2007 (1) KHC 1047 ]. 6. It is the primary responsibility of the prosecution to prove the guilt of the accused beyond reasonable doubt. 6. It is the primary responsibility of the prosecution to prove the guilt of the accused beyond reasonable doubt. None of the independent witness cited by the prosecution supported their case. The oral evidence of PW1 and PW2 itself is not sufficient to believe that they seized MO1 and MO2 from the possession of the appellant as alleged. In the absence of any independent corroboration, the legal infirmity in connection with the seizure is fatal to the prosecution case. Therefore, the conviction under Sec.8(1) and (2) of the Kerala Abkari Act is not sustainable in law. The trial court failed to appreciate that legal position. In the result, the conviction and sentence passed by the Additional Sessions Judge, (Fast Track-I) under Sec.8(1) and (2) is set aside. Accused is acquitted and set at liberty.