IMPORTANT POINTS
The prosecution is bound to explain, especially in a case of the nature, since the court that received the same firstly had directed its return and production secondly after obtaining necessary direction from the court in that regard. The prosecution is also bound to state about the custody of the contraband by a responsible officer for the period from 07.05.1999 till 24.03.2000 to ensure that it was in safe custody during that period, to rule out chances of tampering. Absolutely no evidence is forthcoming in that regard. The delay undoubtedly is inordinate, which the prosecution is bound to explain by cogent reasons. For want of proper explanation from the prosecution the trial, is vitiated and it suffers.

JUDGMENT :

MARY JOSEPH, J.

1. This appeal is directed against the judgment dated 1.6.2006 of Additional Sessions Judge for trial of Abkari Cases, Neyyattikara (for short ‘the trial court’). The appellant is the sole accused in the case. He was chargesheeted by the police for the offence punishable under Section 58 of the Kerala Abkari Act (for short ‘the Act’). He was found guilty for the offence, convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1 lakh and in default to undergo rigorous imprisonment for a period of three months. Aggrieved thereby the appeal on hand is preferred.

2. For the sake of convenience, the parties to this appeal are referred to hereinafter as the accused and the complainant. Sri. J. Jayakumar, the learned counsel and Smt. Maya, the learned Public Prosecutor addressed this Court on behalf of the respective parties to the appeal.

3. Before adverting to the contentions of the counsel on behalf of the accused, an understanding of the prosecution case being relevant is stated hereunder: On 2.5.1999 while the Sub Inspector of Police, Nemom Police Station, who was on patrol duty within the limits of Nemom Police Station with other policemen, got reliable information that the accused was engaged in the sale of illicit arrack and therefore, he reached the spot at about 11.45 am as informed by the informant. There he found the appellant with a 10 litre black jerry can containing some liquor in his hand. The Sub Inspector questioned the accused and he has told about his engagement in sale of arrack. Rs.710/- was also recovered from him, which admittedly was proceeds of sale of arrack. The liquor found in the can was smelled and tasted in the presence of independent witnesses gathered there and was identified as arrack. The accused was arrested after complying with all the mandatory formalities. A seizure mahazar and arrest memo were prepared from the spot. The accused along with the properties seized and the seizure mahazar prepared were produced before the Nemom Police Station by the Sub Inspector of Police. At the Police Station, FIR No. 98/1999 was registered. The contraband and the accused were produced before Judicial First Class Magistrate Court I, Neyyattinkara. From there, contraband was forwarded to Chemical Examiner's Laboratory, for analysis and the report was obtained. Investigation was conducted by Sub Inspector of Police, Nemon Police Station. On concluding the investigation, a final report was prepared and laid before Judicial First Class Magistrate Court-I, Neyyattinkara. The Magistrate received the final report on file and having convinced that the offence involved is exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Thiruvananthapuram, wherefrom, the case was made over to Assistant Sessions Court, Neyyattinkara for trial and disposal. Summons being served on the accused from the court, he entered appearance through a counsel. After hearing the learned Public Prosecutor and the learned counsel representing the accused, charge was framed by the trial court against the accused for the offence under Section 58 of the Act. It was read over and explained to the accused. He pleaded not guilty to the charge and faced trial.

4. On the side of the prosecution four witnesses were examined as PWs. 1 to PW-4. Six documents and two material objects were marked respectively as Exts.P1 to P6 and MO1 and MO2. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all the questions put to him and maintained the stand that he is innocent. He has further stated that the case is a foisted one against him to wreak vengeance of the police. Both the learned Public Prosecutor and the learned counsel for the defence were heard under Section 232 Cr.P.C. Grounds having not been made out to recor