Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 707 (KER)

Anil Kumar v. State of Kerala

2016-08-18

B.KEMAL PASHA

body2016
JUDGMENT B. Kemal Pasha, J. 1. Appellant is the accused in SC No. 236/2006 of the Additional Sessions Court, Ad hoc-I, Pathanamthitta, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of ` 1 lakh, in default to undergo rigorous imprisonment for six months. The prosecution case is that on 26/03/2002 at 1.30 p.m., the accused was found in possession of 2.5 litres of rectified spirit, in contravention of the provisions of the Abkari Act. The offence was detected by CW 1 Excise Inspector attached to the Excise Enforcement and Anti-Narcotic Special Squad, Pathanamthitta. He seized the contraband through Ext. P1 mahazar. Two samples were drawn. The accused was placed under arrest through Ext. P2 arrest memo. CW 1 produced the accused along with the properties, samples and records at the Excise Office, Pathanamthitta. PW 5 Excise Inspector registered crime No. 7/2002 under Section 8(1) and 8(2) of the Abkari Act through Ext. P4 crime and occurrence report. He produced the accused, as well as the contraband and samples before Court on the same day along with Ext. P6 property list and forwarding note. PW 6 Excise Inspector conducted the investigation and filed the complaint on receiving Ext. P8 certificate of chemical analysis. 2. On the side of the prosecution, PWs. 1 to 6 were examined, Exts. P1 to P8 were marked and MO 1 was identified. No defence evidence was adduced. The Court below found the accused guilty of the offence under Section 8(2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 3. Heard learned counsel for the appellant and learned Public Prosecutor. 4. Learned counsel for the appellant has argued that the Court below could not have entered a conviction under Section 8(2) of the Abkari Act in this case when there was no allegation that any arrack was seized from the possession of the appellant. It is argued that the conviction and sentence passed by the Court below are, therefore, liable to be set aside. 5. CW 1, who detected the offence, was not examined as a prosecution witness. It has come out from the evidence of PW 1 Preventive Officer, who was present along with CW 1, that the whereabouts of CW 1 were not known. 5. CW 1, who detected the offence, was not examined as a prosecution witness. It has come out from the evidence of PW 1 Preventive Officer, who was present along with CW 1, that the whereabouts of CW 1 were not known. PW 2 is also another Preventive Officer, who was present along with CW 1 and PW 1. PW 1 and PW 2 have proved the seizure of the contraband. According to PW 1 and PW 2, two samples were drawn from the contraband. According to PW 5, he registered the crime and produced the properties before Court on the same day. It is evident from Ext. P6 property list that the samples along with the contraband were produced before Court on 26/03/2002 itself. 6. Ext. P8 certificate of chemical analysis clearly shows that the items received in the laboratory were rectified spirit involved in Crime No. 7/2002 of the Pathanamthitta Excise Range. On chemical examination, the sample was found containing 29.80% by volume of ethyl alcohol. The Court below has framed the charge against the accused for the offence under Section 55(a) of the Abkari Act. According to the Court below, there is no evidence in this case to show that rectified spirit was seized from the possession of the accused in the course of any illegal export, illegal import or illegal transport, and therefore, an offence under Section 55(a) of the Abkari Act is not sustainable. It was in that context, the Court below has chosen to convict the accused under Section 8(2) of the Abkari Act. 7. In this particular case, nobody has a case that arrack was seized from the possession of the accused. Either PW 1 or PW 2 has not stated that arrack was seized from the possession of the accused. They were of the firm view that what was seized from the possession of the accused was rectified spirit. At the same time, Ext. P8 certificate of chemical analysis shows that the sample contained only 29.80% by volume of ethyl alcohol. Normally, it may not happen. There is everything to suspect that the item involved is not spirit. At the same time, a conviction cannot be based on mere surmises or conjectures. Ext. P8 certificate of chemical analysis does not show that the sample in question is arrack. Normally, it may not happen. There is everything to suspect that the item involved is not spirit. At the same time, a conviction cannot be based on mere surmises or conjectures. Ext. P8 certificate of chemical analysis does not show that the sample in question is arrack. Had there been a case for PW 1 and PW 2 that what was seized from the possession of the accused was arrack, a successful prosecution could have been maintained for an offence under Section 8(2) of the Abkari Act. Here, in this case, their consistent version is that what was seized from the accused was rectified spirit. The Court below found that an offence under Section 8(2) of the Abkari Act was not legally sustainable. It was in that context, the Court below has gone to the extent of convicting the accused under Section 8(2) of the Abkari Act. Section 8 of the Abkari Act specifically deals with prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc. of arrack. Unless and until there is a case that the contraband was arrack, the conviction under Section 8(2) of the Abkari Act is not possible. Matters being so, the conviction and sentence passed by the Court below are liable to be set aside. In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the Court below as against the appellant are set aside. The appellant is acquitted.