Point of Law: Contraband Substances - Benefit of doubt - Acquitted - Delay of more than one year in analysing sample has not been satisfactorily explained - This is also a suspicious circumstance, benefit of which must go to accused.

JUDGMENT :

Aggrieved by the judgment dated 11.8.2006, passed by the learned Additional Sessions Judge, (Adhoc)-II, Thodupuzha, in Sessions Case No.355 of 2005, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act.

2. The prosecution case is that on 30.11.2003, at about 03.00 P.M., the accused was found in possession of nine litres of illicit arrack in a can having a capacity of ten litres, concealed in his landed property at Kanakakkunnu Kara in Vathikkudy Village in Idukki District.

3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act before the Judicial First Class Magistrate Court, Idukki. The case was committed to the Sessions Court, Thodupuzha, from where it was made over to the trial court. On appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. He pleaded not guilty and therefore, he came to be tried by the trial court for the abovesaid offences.

4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exhibits P1 to P7, Exhibit C1 sketch of the scene and MOs 1 and 2. Exhibits D1 and D2 were marked on the side of the defence.

5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. The accused pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce any evidence he may have in support thereof.

6. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-under Section 8(2) of the Abkari Act.

7. Heard Sri.C.M.Tomy, the learned counsel appearing for the accused and Smt.S.L.Silja, the learned Public Prosecutor appearing for the respondent.

8. The learned counsel for the accused made the following submissions :

(i) The prosecution failed to establish the conscious possession of the articles, said to have been seized from the place of occurrence, by the accused.

(ii) The prosecution failed to establish that the very same contraband substance collected from the bulk quantity of the articles seized from the place of occurrence eventually reached the Chemical Examiner’s laboratory.

9. The learned Public Prosecutor, per contra, submitted that the prosecution has well established the charges against the accused.

10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. The point :

11. PW3, the Sub Inspector of Police, Murickassery, detected the offence. PW3 has given evidence that on 30.11.2003, at 02.30 P.M., while he was on patrol duty, on getting reliable information that the accused was keeping arrack for sale in his house at Kanakakkunnu, he proceeded to the place of occurrence. PW3 further gave evidence that the accused took out a can, that contained nine litres of illicit arrack, from a pit. According to PW3, the accused confessed that he had concealed the arrack in the pit. He seized the contraband substance as per Exhibit P1 seizure mahazar and collected 500 ml. of arrack from the can as sample in a bottle. The accused was arrested from the scene of occurrence. PW3 registered Crime No.127 of 2003 on the basis of Exhibit P1 seizure mahazar. PWs 1 and 5, the independent witnesses, did not support the prosecution case.

12. PW2, the then Village Officer, Vathikudy, who had prepared Exhibit C1 sketch, gave evidence in support of the prosecution. PW4 completed investigation and submitted final report bef