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HIGH COURT OF KERALA
C.S. Sudha, J
BHASKARAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 169 2014
Abkari - Conviction Appeal - Abkari Act - Sections 8(2), 53A, 67B - The court emphasized strict adherence to procedural requirements for inventory preparation and evidence presentation in contraband cases, ultimately leading to the accused's acquittal due to reasonable doubt regarding the seizure and prosecution's evidence.
Fact of the Case:
The accused was found in possession of 4 liters of arrack during a patrol by excise officials. Following a conviction under Section 8(2) of the Abkari Act, he appealed, alleging procedural flaws in the prosecution's case.
Finding of the Court:
The court found significant lapses in the prosecution's evidence, particularly regarding the failure to produce the seized contraband and the irregularities in the inventory process, leading to doubt about the validity of the conviction.
Issues: Whether the conviction and sentence against the accused for the offence punishable under Section 8(2) of the Abkari Act were sustainable based on alleged procedural lapses.
Ratio Decidendi: The prosecution must adhere to strict procedural requirements for evidence collection and inventory preparation under the Abkari Act. Failure to do so may result in the benefit of doubt being granted to the accused.
Final Decision: The conviction and sentence of the accused are set aside, and he is acquitted.
J U D G M E N T
In this appeal filed under Section 374(2) Cr.P.C, the appellant who is the accused in S.C.No.1132/2012 on the file of the Sessions Court, Kasaragod, challenges the conviction entered and sentence passed against him for the offence punishable under Section 8 (2) of the Abkari Act , 1077 (the Act).
2. The prosecution case is that, on 09/07/2011 at 11:45 a.m, when PW1, the then Excise Circle Inspector, Hosdurg and party were on patrol duty, they found the accused transiting 4liters of arrack in a black can having a capacity of 5 liters. The place of occurrence is alleged to be in front of the DYFI bus waiting shed at Thekkeppallam, Ravaneshwaram Settlement Colony situated on the southern side of Chalinkal -Chamanikkunnu road. Hence the accused as per the final report, is alleged to have committed the offence punishable under Section 8 (2) of the Act.
3. Ext.P7 dated 09/07/2011 is the crime and occurrence report on the basis of which crime No.49/2011 of Hosdurg Excise Range was registered. PW1 is the detecting officer and PW2 is alleged to be the Preventive officer who had accompanied him. PW5, the then Excise Inspector, Excise Range, Hosdurg, completed the investigation and submitted the final report before the court.
4. On appearance of the accused before the court below, copies of all the prosecution records were furnished to him. On 21/11/2013 a charge for the offence punishable under Section 8 (2) of the Act was framed, read over and explained to the accused, to which he pleaded not guilty.
5. Prosecution examined PWs1 to 5 and got marked Exts.P1 to P3 in support of their case. PW1, PW2 and PW5 are the official witnesses and the remaining witnesses, namely, PW3 and PW4 are the attestors to the arrest memo and seizure memo prepared by PW1. After close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He also submitted a statement in writing in which he states that he is a handicapped person with more than 50% disability; that he has not committed the offence alleged against him and that he has no connection with the contraband alleged to have been seized by the Excise officials and that he had been arrested from his house.
6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has been adduced by the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to undergo simple imprisonment for a period of one year and to pay a fine of ₹. 1,00,000/- and in default of payment of fine to undergo imprisonment for 3 months for the offence punishable under Section 8 (2) of the Act.
Set off has been allowed under Section 428 Cr.P.C.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the court below is sustainable or not.
9. Heard Sri.T.Madhu, the learned counsel for the appellant and Smt.M.N Maya, the learned Public Prosecutor.
10. The arguments advanced on behalf of the accused challenging the prosecution case and the findings in the impugned judgment are two fold, namely- (i) the failure on the part of the prosecution to prove Ext.P10 inventory alleged to have been prepared in this case; and (ii) the delay of two days in producing Ext.P9 forwarding note before the jurisdictional Magistrate has not been explained. PW1, deposed that on 09/07/2011 while he was working as Excise Circle Inspector, Hosdurg, he along with party were on patrol duty. While so at 11:45 a.m, when they reached the place of occurrence they found the accused with the contraband article, that is, 4
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